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A  TREATISE 


ON  THE  WRONGS  CALLED 


SLANDER  AND  LIBEL, 


THE   REMEDY    BY    CIVIL    ACTION    FOR 
THOSE    WRONGS. 


By    JOHN    TOWNSHEND. 


NEW  YORK: 
BAKER,    VOORHIS    &    CO.,    PUBLISHERS, 


66    NASSAU    STREET. 


LONDON:      STEVENS     &     HAYNE8. 
1868. 


Entered  according  to  Act  of  Congress,  in  the  year  1S68,  by 

JOHN  TOWNSHEND, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the 

Southern  District  of  New  York. 


33*574 
Do 


Barer    &   Godwin,   Printers, 
printing-house  square.  n.  y. 


? 


PREFACE. 


Over  thirty  years'  practice  in  my  profession,  with 
no  inconsiderable  experience  in  libel  suits,  taught 
me  the  difficulties  in  the  law  regarding  defamation  ; 
difficulties,  which  will  be  readily  understood  by  all 
those  who  have  endeavored  to  master  the  subject. 
I  undertook  to  prepare  the  following  essay,  suppos- 
ing that  by  rendering,  in  some  measure,  my  expe- 
rience available  to  the  student  and  the  practitioner, 
I  could  mitigate — to  remove  would  be  impossible — 
the  obstacles  to  an  understanding  of  the  Law  of 
Libel.  I  may  have  fallen  far  short  of  accomplishing 
the  end  I  contemplated,  but  I  cannot  believe  that 
my  labor  has  been  wholly  in  vain. 

In  prosecuting  my  work  I  have  availed  myself 
freely,  but  not  unfairly,  of  the  labors  of  my  pre- 
cursors in  the  same  field  of  thought,  and  I  ac- 
knowledge my  indebtedness  for  much  assistance 
thus    derived.      To    Elb ridge    T.    Gerry,    Esq.,    of 


IV  PREFACE. 

the  New  York  Bar,  my  thanks  are  especially  due 
for  his  politely  giving  me  the  benefit  of  his  extensive 
library ;  nor  should  I  omit  to  record  my  obliga- 
tions to  my  wife  for  much  valuable  and  intelligent 
aid  in   the  prosecution  of   my  work. 

Conscious  of  its  many  imperfections,  and  be- 
speaking for  it  an  indulgent  reception,  I  neverthe- 
less experience  much  satisfaction  in  publishing  the 
following  essay.  I  know  that  in  so  doing  I  ter- 
minate what  has  been  no  trifling  task,  and  I  hope 
and  believe  I  thereby  discharge 

My  debt  to  my  profession. 

JOHN  TOWNSHEND. 

New  York,  August,  1868. 


CONTENTS. 


Preface   ......  iii 

Table  of  names  of  cases  cited  xi 

Table  of  references  to  reports  without  the  name 

OF   THE   CASE    PREFIXED  .  .  .  xli 

Table  of  works  referred   to,  exclusive  of  the  re- 
ports ......        xlii 

List  of  works  on  the   subject  of  libel,  in   addition 

to  those  referred  to  in  the  notes  y      .  .    xlviii 

CHAPTEE    I. 

INTRODUCTORY. 

Language  as  a  means  of  effecting  injury. — Slander. — Libel. — Defa- 
mation.— Redress. — The  Law  of  Libel. — Object  in  view. — 
Division  of  subject. — Attempts  to  define  Libel.  .  .  1 

CHAPTER   II. 

HOW    ONE    MAY    AFFECT   ANOTHER   BY    LANGUAGE. 

Language  can  have  no  effect  unless  published. — It  must  be  true  or 
false,  commendatory  or  discommendatory. — Must  concern  a 
person  or  thing. — Its  effect,  direct  or  indirect,  or  both. — Re- 
putation. .......         36 


VI  CONTENTS. 


CHAPTER    III. 

EIGHTS  ;   DUTIES  ;    WRONGS  ;    REMEDIES. 

Description  of  Rights  and  Duties. — Wrongs,  Rights  and  Duties, 
undefinable. — What  determines  of  any  act  if  it  be  a  Wrong. — 
Remedies. — Injunction. — Original  Writs.  .  .  .40 


CHAPTER    IV. 

WHAT   IS   THE    GIST    OF   THE    ACTION    FOR    SLANDER   OR   LD3EL. 

History  silent  as  to  the  Introduction  of  the  Action  for  Slander. — 
Hypothesis  necessary. — How  the  Law  protects  Reputation. — 
Fiction. — Pecuniary  Loss  the  Gist  of  the  Actions  for  Slander 
and  Libel.  .......        49 


CHAPTER    V. 

WRONGFUL    ACTS.       ELEMENTS    OF    A    WRONG. 

Wrongful  Acts. — Liability. — Presumptions  of  Law. — Questions  of 
Law  and  Fact. — Essential  Acts  in  Slander  and  Libel. — 
Defamatory.  —  Falsity.  —  Voluntary.  —  Involuntary.  —  Inten- 
tion.— Malice.         .......        62 

CHAPTER    TI. 

PUBLICATION.       PUBLISHER. 

A  Publication  is  Necessary. — Meaning  of  the  term  Publication. — 
The  Language  Published  must  be  Understood. — The  Publica- 
tion may  be  Orally  or  in  Writing. — What  amounts  to  an  Oral 
and  what  to  a  Written  Publication. — Publication  of  Effigy. — 
Requisites  of  an  Oral  Publication. — Requisites  of  a  Written 
Publication. — Time  of  Publication. — Place  of  Publication. — 
Who  is  a  Publisher. — Republication  and  Repetition.  Dis- 
tinction between. — Joint  Publication. — Liability  for  Publica- 
tions.— Voluntary  and  Involuntary  Publications. — Liability  of 
Principal  and  Agent. — Newspaper  Publisher. — Bookseller.      .        98 


CONTENTS.  vii 

CHAPTEE    VII. 

CONSTRUCTION   OF    LANGUAGE. 

Actionable  quality  of  language  dependent  upon  its  construction. — 
All  language  ambiguous  or  unambiguous. — Difficult  to  deter- 
mine what  is  and  what  is  not  ambiguous. — Points  upon  which 
ambiguity  arise. — Causes  of  ambiguity. — Ambiguity,  how  ex- 
plained.— Different  effects  of  Language  concerning  a  person 
and  of  language  concerning  a  thing. — Materiality  of  questions, 
what  person  or  thing  affected,  and  whether  the  person  is  af- 
fected as  an  individual  merely,  or  in  some  acquired  capacity. — 
Principles  of  construction;  before  verdict;  after  verdict. — 
Examples  of  construction. — Divisible  matter.  .  .       109 

CHAPTEE    VIII. 

WHAT   LANGUAGE    IS   ACTIONABLE. 

Language  must  be  such  as  does  or  does  not  occasion  damage. — 
What  is  meant  by  actionable  per  se,  and  actionable  by  reason 
of  special  damage. — What  language  concerning  a  person  as 
such,  published  orally,  is  actionable  per  se. — What  language 
concerning  a  person  as  such,  published  in  writing,  is  action- 
able per  se. — What  language  concerning  one  in  an  acquired 
capacity,  is  actionable  per  s'e. — What  language  concerning  a 
person  is  actionable  by  reason  of  special  damage. — What  lan- 
guage concerning  the  affairs  of  a  person,  his  property  or  his 
title  thereto,  is  actionable.  .....       148 

CHAPTEE    IX. 

DEFENCES. 

Privileged  publications  generally. — Repetition. — Truth. — Legisla- 
tive proceedings  and  reports  thereof. — Judicial  proceedings. — 
Parties  to  proceedings. — Counsel. — Witnesses. — Judges. — Re- 
ports of  judicial  proceedings. — Quasi  judicial  proceedings. — 
Church  discipline. — Seeking  advice  or  redress  other  than  ju- 
dicially.— Giving  information  or  advice  generally. — Master 
and  servant. — Candidates  for  office  or  employment. — Insan- 
ity.— Drunkenness. — Infancy. — Accord  and  satisfaction. — Pre- 
vious recovery. — Apology. — Freedom  of  the  Press. — Criti- 
cism. ........       247 


Vlll  CONTENTS. 


CHAPTER    X. 

CORPORATIONS. 

Corporations  are  legal  persons. — Their  rights  and  duties  assimilated 
to  those  of  natural  persons. — Can  act  only  through  agents. — 
May  carry  on  business,  sue  and  be  sued,  and  are  liable  for  in- 
juries committed  by  agents. — Corporations  may  have  a  repu- 
tation.— Language  concerning  corporations. — Actions  by  cor- 
porations for  libel. — Corporations  cannot  be  guilty  of  slan- 
der.— May  be  guilty  of  libel.        .....       357 


CHAPTER    XL 

PROCEEDINGS    IN    AN    ACTION. 

Action,  how  commenced. — Within  what  time. — In  what  court. — 
Attachment. — Holding  defendant  to  bail. — Execution  against 
the  person. — Security  for  costs. — Place  of  trial. — Inspection 
and  discovery. — Assessment  of  damages  where  no  answer  in- 
terposed.— Mode  of  trial. — Struck  jury. — Refusing  to  try. — 
Right  to  begin. — Address  of  counsel. — Reading  libel  to  jury. — 
Evidence  for  plaintiff. — Abandonment  of  one  of  several  causes 
of  action  or  defence. — Province  of  the  court  and  jury. — Dam- 
ages.— Verdict. — New  trial. — Costs.        ....       362 


CHAPTER    XII. 


PARTIES. 

Question  as  to  parties  anticipated. — Action  by  alien. — Outlaw. — 
Rebel. — Executors  or  administrators. — Married  woman. — Hus- 
band and  wife. — Partners. — General  rule  as  to  joinder. — Action 
against  husband  and  wife. — Contribution.  .  .  .       388 


CONTENTS.  IX 


CHAPTER    XIII. 

PLEADING.       THE    COMPLAINT. 

General  requisites  of  a  complaint. — Complaint  for  language  con- 
cerning a  person  only  to  be  considered.—  Inducement. — Collo- 
quium.— Publication. — Matter  published. — Innuendo. — Special 
damage. — Several  counts. — Supplemental  complaint.     .  .       393 


CHAPTER    XIV. 

PLEADING.       ANSWER.       DEMURRER. 

The  answer  corresponds  to  plea. — What  it  must  contain. — Plea  to 
part  of  a  count. — Answer  of  justification  must  give  color,  show 
a  lawful  occasion,  and  deny  malice. — Several  answers.— De- 
fence of  truth  must  be  pleaded. — How  pleaded. — Where  the 
charge  is  general. — Where  the  charge  is  specific. — Certainty  in 
statement  of  facts. — Answer  of  justification  bad  in  part,  bad 
altogether. — Mitigating  circumstances.   ....       433 


CHAPTER    XV. 

VARIANCE.       AMENDMENT. 

Allegation  of  pleadings  and  proof  should  correspond. — Variance 
in  New  York. — General  rules  as  to  variance. — Immaterial 
variance. — Material  variance. — Amendment.       .  .  .      448 


CHAPTER    XVI. 

EVIDENCE    FOR   PLAINTIFF. 

Proof:  of  publication;  of  oral  publication;  of  publication  in 
writing ;  of  defendant's  liability. — Opinion  of  witnesses  as  to 
meaning. — Proof  of  inducement ;  of  plaintiff's  good  reputa- 
tion ;  of  malice ;  to  aggravate  damages. — Falsehood  not  evi- 
dence of  malice. — Other  publications  by  defendant;  subse- 
quent publications;  publication  after  commencement  of  ac- 
tion.— Defendant's  ill-will  to  plaintiff — .Ill-will  to  plaintiff  of 
persons  other  than  the  defendant. — The  publication  itself  evi- 
dence of  malice. — Attempted  justification  an  aggravation. — 
Evidence  in  reply.  ......       462 


X  CONTENTS. 

CHAPTEE    XYII. 

EVIDENCE    FOR    DEFENDANT. 

What  evidence  is  admissible  depends  upon  what  plea  or  answer  is 
interposed. — What  may  be  proved  under  the  general  issue. — 
Evidence  to  support  a  justification. — Plaintiff's  reputation  in 
issue. — Inquiry  limited  to  plaintiff's  general  reputation,  and  to 
his  reputation  prior  to  the  publication  complained  of. — Truth 
in  mitigation. — Conduct  of  plaintiff  leading  to  belief  in  truth. — 
Report  or  suspicion  of  plaintiff's  guilt  in  mitigation. — Plain- 
tiff's standing  and  condition  in  society. — Prior  or  subsequent 
declarations  of  defendant. — Heat  and  passion. — Previous  pub- 
lications by  the  plaintiff. — Controversies  between  plaintiff  and 
defendant  prior  to  the  publication. — Circumstances  not  admis- 
sible in  mitigation.  ......      487 

Appendix  ........      507 

Index  ........       509 


TABLE    OF    CASES. 


[The  references  are  to  the  numbers  of  the  notes.] 


Abrams  v.  Foshee,  358. 

Abrams  v.  Smith,  1444, 1800, 1982,  2016. 

Abshire  v.  Cline,  571,  1031,  1039. 

Adams  v.  Kelly,  113. 

Adams  v.  Miredew,  908. 

Adams  v.  Rivers,  2. 

Adams  v.  Smith,  1024. 

Adams  v.  Ward,  2039. 

Addington  v.  Allen,  1469. 

Adecock  v.  Marsh,  525,  1235,  1979. 

Aier  v.  Frost,  432. 

Alcorn  v.  Hooker,  1031. 

Alderman  v.  French,  1013,  1031,  1744, 

2008,  2042,  2043,  2071,  2078. 
Aldrich  v.  Brown,  141,  2039. 
Aldrich    v.   Press   Printing   Co.,    1279, 

1341. 
Alexander  v.  Alexander,  192,  304,  432, 

439,  474. 
Alexander    v.   Angle,    71 4,   769,    1558, 

1693. 
Alexander  v.  Harris,  2078. 
Alexander  v.  N.  East  R.  R.  Co.,  1341. 
Alexandria ;   The,  26. 
Alfred  v.  Farlow,  547,  1470. 
Allardice  v.  Robertson,  1118. 
Allcott  v.  Barber,  722. 
Allen  v.  Crofoot,  1099,  1183,  1788. 
Allen  v.  Hillman,  234,  471,  609,  752. 
Allen  v.  Patterson,  161. 
Allen  v.  Perkins,  1624. 
Allensworth  v.  Coleman,  132,  150,  1892, 

1971. 
Alleston  v.  Moor,  903. 
Alley  v.  Neely,  263,  452,  1901. 
Alsop  v.  Alsop,  160,  517,  965. 
Amann  v.  Damm,  98,  1237. 
Ames  v.  Hazard,  1741. 
Amick  v.  O'Hara,  84. 
Anderson  v.  Stewart,  1707. 
Andres  v.  Wells,  125. 
Andrews  v.  Bird,  432. 


Andrews  v.  Chapman,  1142. 

Andrews  v.  Hoppenheafed,  304, 332, 334, 

669. 
Andrews  v.  Murray,  1526. 
Andrews  v.  Thompson,  1497. 
Andrews  v.  Thornton,  1036. 
Andrews   v.   Van   Deuser,    1031,    1045, 

1049,  2040,  2046. 
Andrews  v.  Woodmansee,  137,  141,  194, 

200,432,  1402,  1644. 
Angle  v.  Alexander,  1469. 
Anibal  v.  Hunter,  1756. 
Ankin  v.  Westfall,  1750. 
Annison  v.  Blofield,  848. 
Anon.,  140,  160,  176,  387,  432,  447,  476, 

517,  555,   559,   626,  641,   759,   773, 

783,    788,   793,  823,  836,  951,  991, 

1678,  1681,  1687,  1755,  1887,  2044, 

2071,  2112. 
Anthony  v.  Stephens,  1097,    2042,  2071 
Apton  v.  Penfold,  575. 
Archbold  v.  Sweet,  876,  1424. 
Armentrout  v.  Miranda,  18. 
Armitage  v.  Dunster,  1809. 
Armstrong  v.  Jordan,  852. 
Armstrong  v.  Pierson,  1453. 
Arne  v.  Johnson,  146. 
Arnold  v.  Clifford,  1526. 
Arnold  v.  Cost,  432. 
Arrington  v.  Jones,  1031,  2034. 
Artieta  v.  Artieta,  587,  2078. 
Ashley  v.  Bates,  1380. 
Ashley  v.  Billington,  140. 
Ashley  v.  Harrison,  2,  57,  971. 
Aspinwall  v.  Whitmore,  1908. 
Astley  v.  Younge,  1092,  1095, 1100. 
Aston  v.  Blagrave,  901. 
Atkinson  v.  Fosbrook,  1359. 
Atkinson  v.  Hartley,  142,  617. 
Atkinson  v.  Reding,  437. 
Atkinson  v.  Scammon,  196. 
Attebury   v.  Powell,  1580,  1746,  1753, 

1907. 
Ausman  v.  Veal,  143. 
Austen  v.  Wilson,  1466. 


xn 


TABLE  OF  CASES. 


Austie  v.  Mason,  432. 

Austin  v.  Hanchett,  1021, 1024. 

Austin  v.  White,  641. 

Austria,  Emperor  of,  v.  Day,  26. 

Avarillo  v.  Rogers,  1811. 

Ayraultv.  Chamberlain,  1378,  1388. 

Ayrev.  Craven,  522,  747,  772,  1558. 

Ayres  v.  Covell,  1528,  1792. 


B 

Baal  v.  Baggerly,  166. 

Baboneau  v.  Farrell,    699,  720,    806, 

809,  1666,  1703,1983. 
Backus  v.  Richardson,  160,  750,  751, 

1371. 
Bacon  v.  Beach,  692. 
Bacon's  Case,  151. 
Badgley  v.  Decker,  46. 
Badgley  v.  Hedges,  511,  1098,  1100. 
Bagley  v.  Johnson,  1 624. 
Bagnallv.  Underwood,  1955. 
Bailey  v.  Dean,   9,    130,    982,    1092, 

1480. 
Bailey,  ex  "parte,  1404,  1491. 
Bailey  v.  Maynard,  290. 
Bailey  v.  Mogg,  722. 
Baker  v.  Bailey,  84. 
Baker  v.  Briggs,  1481. 
Baker  v.  Hart,  1154. 
Baker  i\  Lane,  1360. 
Baker  v.  Morfue,  871. 
Baker  v.  Peirce,  142,   160,   166,    172, 

238,  239,  251,  297. 
Baker  v.  Sanderson,  1469. 
Baker  v.  Swackhamer,  1346. 
Baker  v.  Wilkinson,  1922. 
Baldwin  v.  Elphinstone,  103,  1587,  1598. 
Baldwin  v.  Flower,  1511. 
Baldwin  v.  Hildreth,  1582. 
Baldwin  v.  Soule,  1813,  1992. 
Ball  v.  Bridges,  158. 
Ballard  v.  Lockwood,  443. 
Banfield  v.  Lincoln,  443. 
Barbaud  v.  Hookham,  1196. 
Barber  v.  Bennett,  1153. 
Barber  v.  Dixon,  2015. 
Barclay  v.  Thompson,  350. 
Barfiel'd  v.  Britt,  2077. 
Barger  v.  Barger,  482,  1412. 
Barham  v.  Nethersoll,  177,  354,   430, 

1647,  1658,  1659. 
Barnabas  v.  Traunter,  569. 
Barnard  v.  Whiting,  1469. 
Barnes  v.  Holloway,  1353,  1810. 
Barnes  ».  Hurd,  1469. 


Barnes  v.  McCrate,  1095. 

Barnes  v.  Strudd,  959. 

Barnes  v.  Trundy,  933,  1584,  1717. 

Barnett  v.  Allen,  187,  581,  1400, 1946. 

Barnett  v.  Chetwood,  26. 

Baron  v.  Beach,  662. 

Barr  v.  Gaines,  1813,  1833. 

Barren  v.  Mason,  67. 

Barrett  v.  Jarvis,  142,  617. 

Barrett   v.  Long,   1665,    1675,    1703, 

1715.  1973,  1990,  1997. 
Barronsw.  Ball,  160,  447. 
Barrow  v.  Bell,  1182,  1425,  1428. 
Barrow  v.  Gibson,  954. 
Barrow  v.  Lewellin,  121. 
Barrows  v.  Carpenter,  1904. 
Bartholemy  v.  The  People,  1045,  2036, 

2041. 
Bartholomew  v.  Bentley,  161. 
Bartley  v.  Richtmeyer,  47. 
Barton  v.  Barton,  1594. 
Barton  u.  Brand,  1986. 
Barton  v.  Holmes,  1942. 
Barton  v.  Port  Jackson,  722. 
Barwell  v.  Adkins,  1975. 
Bash  v.  Sommer,  142,   160,  252,  354r 

1292,1513,  1516,  1517. 
Basket  v.  University  of  Cambridge, 

1301. 
Bassett  v.  Spofford,  1624,  1813. 
Bateman  v.  Lyall,  1729. 
Baum  v.  Clause,  59,  338,  1031. 
Baxter's  Case,  1677. 
Bayard  v.  Passmore,  1154. 
Baylis  v.  Lawrence,  1432,  1437. 
Beach  v.  Beach,  1515. 
Beach  v.  Ranney,  48,  937,  965,    1514. 

1803. 
Beamond  v.  Hastings,  906,  1554. 
Beardsley  v.  Bridgman,  516,  2059,  2071 
Beardsley  v.  Dibblee,  142,  332. 
Beardsley  v.  Tappan,   141,  732,   805, 

1248,  1644. 
Beasley  v.  Meigs,  2007. 
Beatson  v.  Skene,  1198,  1247. 
Beaumont  v.  Reeves,  2. 
Beavor  v.  Hides,  346. 
Bechtell  v.  Shatter,  98. 
Beck  v.  Stitzel,  304,  306,  336,  919. 
Beckett  ?'.  Sterrett,  226, 460. 
Beckford  v.  D'Arcy,  1360. 
Bedell  v.  Powell,  33,  965. 
Beebe  v.  Bank  of  New  York,  14. 
Beechey  v.  Sides,  1342. 
Beers  v.  Root,  1487. 
Beers  v.  Strong,  169,  170,  477. 
Bell  v.  Bug,  1623. 
Bell  v.  Byrne,  1857. 


TABLE  OF  CASES. 


Xlll 


Bell  v.  Farnsworth,  477,  507. 

Bell  v.  Howard,  1481. 

Bell  v.  Parke,  2042. 

Bell  v.  Stone,  650,  664. 

Bell  v.  Thatcher,  553,  760,  8S      1547. 

Bell  v.  Quinn,  722. 

Bellamy  v.  Barker,  587. 

Bellamy  v.  Burch,  716,  752,  757. 

Bellingham  v.  Minors,  540. 

Benaway  v.  Congre,  1475,   1519,  1644, 

1715. 
Bendish  v.  Lindsay,  562,  1543. 
Bennett  v.  Barr,  1173. 
Bennett  v.  Bennett,  1030,  2097. 
Bennett  v.  Deacon,  1005. 
Bennett  v.  Hyde,  1958,  1979. 
Bennett  v.  Long,  781. 
Bennett  v.  Wells,  780,  1469. 
Bennett  v.  Williamson,  160,  663,  708, 

1403. 
Benson  v.  Morley,  470. 
Bentley  v.  Reynolds,  933,  967. 
Benton  v.  Pratt,  980. 
Berry  v.  Adamson,  292. 
Berry  v.  Carter,  516,  531. 
Berry  v.  Dryden,  1812,  1875. 
Berryman  v.  Wise,  1954. 
Best  v.  Bander,  722. 
Beswick  v.  Chappel,  482,  1644,   1655. 
Biddulph    v.    Chamberlayne,      1061, 

1497,  1790. 
Bignell  v.  Buzzard,  956. 
Bihin  v.  Bihin,  2. 
Billing  v.  Knight,  1529. 
Billings  v.  Waller,  1753. 
Billings  v.  Wing,  304,  320,  325,  333. 
Binns  v.  McCorcle,  1022. 
Binns  v.  Stokes,  1013. 
Birch  v.  Benton,  325,  615,  1717, 1805. 
Birch  v.  Walsh,  1154. 
Bird  v.  Higginson,  1380. 
Bisbey  v.  Shaw,   1031,    1792,    2018, 

2054,  2067. 
Bissellu.  Cornell,  141,  358,  1037,  1075, 

1781,  1791. 
Black  v.  Holmes,  1003. 
Blackburn  v.  Blackburn,  1445,  1492. 
Blackham  v.  Pugh,  1005,  1206. 
Blackwell  v.  Wiswall,  124. 
Blagg  v.  Sturt,  1200,  1412, 1703,  1964. 
Blair  v.  Sharp,  482. 
Blaisdell  v.  Raymond,  1403,  1532. 
Blake  v.  Pilford,  1194. 
Blanchard  v.  Fisk,  465,  473. 
Blessing  v.  Davis,  1627. 
Bleverhasset  v.  Baspoole,  907. 
Blizard  v.  Kelly,  1624. 
Bloodworth  v.  Gray,  628,  635. 


Bloome  v.  Bloome,  169,  332,  1469. 

Blossv.  Tobey,  142,  163,  308,  428. 

Blunden  v.  Eustace,  818. 

Blunt?/.  Zuntz,  1799. 

Bodwell  v.  Osgood,   687,   779,   1194, 
1445,  1481,  1961,  2007. 

Bodwell  v.  Swan,  1031,  1969,2075. 

Boldroe  v.  Porter,  43,  144. 

Bond  v.  Douglas,  103,   115,  1936,    1972 
2076. 

Bond  v.  Kendall,  2097. 

Bonner  v.  Boyd,  459,  465. 

Bonner's  Case,  641,  642. 

Bonner  v.  McPhail,  1374,  1570. 

Boosey  v.  Wood,  1286. 

Booth  v.  Leach,  423. 

Booth  v.  Milnes,  1380. 

Booth  v.  Sweezy,  66. 

Borgess  v.  Boucher,  166. 

Bornman  v.  Boyer,  259,  475. 

Boston  v.  Tatham,  337,  339. 

Bostwick  v.  Hawley,  1717. 

Bostwick  v.  Jervis,  1095. 

Bostwick  v.  Nicholson,  1717. 
|  Botelar  v.  Bell,  1971,  2080,  2106. 

Boulnois  v.  Mann,  54. 
■  Boulton  v.  Clapham,  1101. 

Bourke  v.  Warren.  138,  1830. 

Bourland  v.  Eidson,  2091. 

Bouyon  v.  Trotter,  134. 

Bowdish  v.  Peckham,  1579,  2042. 

Bowen  v.  Hall,  2042,  2046,  2071. 

Bowman  v.  Early,  1468. 

Boxy.  Barnaby,  541. 

Box's  Case,  641. 

Boyd  v.  Brent,  517,  1799. 

Boydell  v.  Jones,   137,  806,  852,  1402, 
1528. 

Boynton  v.  Kellogg,  20. 

Boynton  v.  Remington,  1322. 

Boys  v.  Boys,  517. 

Bracebridge  v.  Watson,  960. 

Bracegirdle  v.  Bailey,  2043. 

Brackett  v.  Davis,  1973. 

Braden  v.  Walker,  2011. 

Bradford  v.  Edwards,  2077,  2078. 

Bradley  v.  Gibson,  2070. 

Bradley  v.  Heath,   1168,   1177,   1209, 
2069. 

Bradley  v.  Kennedy,  1472,  2019,  2031. 

Bradley  v.  Methuen,  14. 

Bradshaw  v.  Perdue,  1592. 

Brady  v.  Wilson,  305,  428. 

Bradford  v.  Freeman,  1380. 

Brandreth  v.  Lance,  26. 

Brandt  v.  Towsley,  965,  1463. 

Brashen  v.  Shepherd,  1582. 

Bray  v.  Andrews,  373. 


XIV 


TABLE  OF  CASES. 


Braynew.  Cooper,  309,  771. 

Brecheley  v.  Atkins,  426. 

Brent  v.  Ingram,  132. 

Brewer  v.  Day,  2. 

Brewer  v.  Weakly,  741,  1279. 

Bricker  v.  Potts,  587,  1529. 

Brickett  v.  Davis,  1761,  1791,  1892. 

Bridges  v.  Horner,  1470. 

Bridgman  v.  Hopkins,  2042,  2070. 

Brigg's  Case,  547. 

Briggs  v.  Byrd,  132,  1091. 

Brine  v.  Bazalgette,  1965. 

Brittain  v.  Allen,  1533,  1986. 

Bromage  v.  Prosser,    71,  74,    80,   84, 

1225,  1445,  1962. 
Brook's  Case,  751. 
Brook  v.  Montague,  85,  1105. 
Brook  v.  Rawl,  988,  993. 
Brooke  v.  Wise,  641. 
Brooker  v.  Coffin,  296,  518,  524. 
Brooks  v.  Bemiss,  215,  665,   1060,  1766. 
Brooks  v.  Blanchard,  1200,  1222,  1878. 
Brooks  v.  Bryan,  1024. 
Brooks  v.  McLellan,  1346. 
Broome  v.  Gosden,  1703. 
Broomfield  v.  Snoke,  603. 
'  Brown  v.  Brasher,  106. 
Brown  v.  Brooks,  2079. 
Brown  v.  Brown,  216,  1653,  1655,   2078. 
Brown  v.  Charlton,  144,  404. 
Brown  v.  Croome,  1251. 
Brown  v.  Gosden,  1492. 
Brown  v.  Leeson,  1376. 
Brown  v.  Lisle,  156. 
Brown  v.  Michel,  1091. 
Brown?'.  Hirley,  120. 
Brown  v.  Hook,  826. 
Brown  v.  Lamberton,  169, 1551,  1582. 
Brown  v.  Mims,  806,  825. 
Brown  v.  Murray,  1388. 
Brown  v.  Nickerson,  627. 
Brown  v.  Orvis,  821. 
Brown  v.  Remington,  671. 
Brown  v.  Smith,  711,  783,  787,  1116. 
Brown  v.  Thurlow,  1589. 
Browning  v.  Aylwin,  1364. 
Brownlow's  Case,  1565. 
Branson  v.  Lynde,  2042. 
Brunswick  v.  Harmer,  116. 
Brunswick,   Duke  of,  v.   Pepper,  1740, 

2018. 
Bruton  v.  Downes,  1481. 
Bryan  v.  Gurr,  1761,  2042. 
Bryant  v.  Jackson,  1280. 
Bryant  v.  Loxton,  720,  806,  808. 
Buck  v.  Hersey,  308,  627,  760,  883. 
Buckingham  v.  Murray,  1639. 
Buckley  v.  Wood,  1091. 


Bucklin  v.  Ohio,  20. 

Buddington  v.  Davis,  1743,  1758. 

Buford  v,  McLuniff,  2042. 

Buhlerv.  Wentworth,  1746. 

Bullock  v.  Babcock,  84,  1280. 

Bullock  v.  Cloyes,  1970. 

Bullock  v.  Koon,  503. 

Bunning  v.  Perry,  1349. 

Bunton  v.  Worley,  1091. 

Burbank   v.  Horn,  106,  237,  250,   467, 

1591,  1604,  1607. 
Burcher  v.  Orchard,  1525. 
Burdett?;.  Cobbett,  103,  115. 
Burford  v.  Wible,  1037,  1043. 
Burke  v.  Miller,  2042,  2046,  2060. 
Bu;lingame  v.  Burlingame,  1091. 
Burns  v.  Webb,  1031. 
Burrell  v.  Nicholson,  1380. 
Burson  v.  Edwards,  1973,  1975,  1984. 
Burtch  v.    Nickerson,    304,    750,    751, 

1653. 
Burton  v.  Burton,  106,  304,  551. 
Burton  v.  March,  1958,  1968. 
Burton  v.  Tokin,  906. 
Bury  v.  Wright,  472. 
Bush  v.  Prosser,  84,  85,  88,  1792,  2018, 

2038,  2067. 
Bush  v.  Smith,  391. 
Bute  v.  Gill,  260,  354. 
Butler  v.  Howes,  821. 
Butler  v.  Wood,  1673. 
Butterfield  v.  Buffum,  134,  169. 
Button  v.  Heyward,  43,   134,  150,    160, 

206,  446,  1546. 
Buys  v.  Gillespie,  521. 
Byrket  v.  Monohon,   1957,  1961,  2010, 

2031,  2068. 
Byron  v.  Elmes,  516. 


c 


Caddy  v.  Barlow,  1962. 

Caesar  v.  Curseny,  901. 

Caldwell  v.  Abby,  589,  610,  1644. 

Caldwell  v.  Raymond,  689,   1533,  1536, 

1538. 
Calhoun  v.  McMeans,  2098. 
Calkins  v.  Sumner,  1095. 
Callw.  Foresman,  1573. 
Callahger  v.  Cavendish,  1353. 
Callan  v.  Gaylord,  1895. 
Calloway  v.  Middleton,  1013. 
Camp  v.  Martin,  853,  864,  877,  879. 
Campbell    v.    Butts,   1289,    1296,    1983, 

1986. 


TABLE  OF  CASES. 


XV 


Campbell  v.  Lewis,  1470. 

Campbell   v.  Spottiswoode,   1033,   1079, 

1302,  1322. 
Cane  v.  Goulding,  993. 
Cann  v.  Cann,  1154. 
Cannon  v.  Phillips,  1528, 1570,  1575. 
Canterbury  v.  Hill,  482,  1573. 
Capel  v.  Jones,  659. 
Carlock  v.  Spencer,  482,  1474,  1743. 
Cam  v.  Osgood,  906. 
Carr  v.  Duckett,  979,  1000. 
Carr  v.  Hood,  980,  1001,  1312. 
Carr  v.  Jones,  1147. 

Carpenter  v.  Dennis,  719,  783,  803, 1557. 
Carpenter  v.  The  People,  20. 
Carpenter  v.  Turrant,  344. 
Carrol  v.  Bird,  1260. 
Carroll  v.  White,  134, 206,  442,  448,  857, 

1532,  1713. 
Carslake  v.  Mapeldora,  635,  637. 
Carson  v.  McFadden,  1505. 
Carter  v.  Anderson,  226,  227,  606. 
Carter  v.  Andrews,  144,   145,   147,   894, 

1536,  1548,  1713. 
Carter  v.  Jones,  1378. 
Carter  v.  McDowell,  1995. 
Carter  v.  Smith,  963. 
Cartwright  v.  Gilbert,  1374. 
Case  v.  Buckley,  428,  474,  1469,  1529. 
Case  v.  Marks,  1490,  1979,  2070. 
Casneau  v.  Bryant,  1370. 
Cass  v.  Anderson,  137, 170,  505,  1536. 
Castlebury  v.  Kelly,  360. 
Castleman  v.  Hobbs,  1648,  1692. 
Cates  v.  Kellogg,  112. 
Catterall  v.  Catterall,  11. 
Cave  v.  Shelor,  1582. 
Cavel  v.  Birket,  520. 
Caverly  v.  Caver ly,  1644. 
Cawdrey  v.  Tetley,  858. 
Ceely  v.  Hoskins,  141,  166. 
Cefret  v.  Burch,  351. 
Center  v.  Finney,  49. 
Center  v.  Spring,  67. 
Chaddock  v.  Briggs,  163,  169,  308,  627, 

662,  883,  899. 
Chadwick /'.  Herepath,  1287,1304. 
Chalmers  v.  Payne,  1146,  1405. 
Chalmers  v.  Schackell,  1539,  1561. 
Chamberlain  v.  Gaillard,  1381. 
Chamberlaine  v.  Willmore,  117. 
Chambers  v.  Caulfield,  1481. 
Chambers  v.  Payne,  1142. 
Chambers  v.  White,  1550. 
Chandler   v.   Holloway,  132,    206,    442, 

1548,  1812. 
Chandler  v.  Robison,  1783. 
Chantler  v.  Lindsey,  1618. 


Chaplin  v.  Cruikshank,  551. 

Chapman  v.  Colder,  1031. 

Chapman  v.  Gillett,  477,  495. 

Chapman  v.  Lamphire,  783,  796. 

Chapman  v.  Pickersgill,  2. 

Chapman  v.  Smith,  167,  482,  1570. 

Chapman  v.  Wright,  1228. 

Charlton  v.  Walton,  1154,  1159. 

Charlton  v.  Watson,  2020. 

Charnell's  Case,  354. 

Chase  v.  Whitlock,  582,  594. 

Cheadle  v.  Buell,  313,  354,  568,  1813. 

Cheatwood  v.  Mays,  548. 

Cheese  v.  Scales,  923. 

Cheetham  v.  Tillotson,  1470,  1734. 

Chetwind  v.  Meeston,  897. 

Chevalier  v.  Brush,  1029. 

Child  v.  Affleck,  1271,  1962. 

Child  v.  Homer,  2090. 

Childs  )».  State  Bank  of  Mo.,  1333. 

Chilvers  v.  Greaves,  1452. 

Chipman  v.  Cook,  562,  806,  828,  899. 

Christie  v  Cowell,  141,  262. 

Chubb  v.  Flannagan,  49,  126,  1790. 

Chubb  v.  Gsell,  1957. 

Chubb  v.  Westley,  1974. 

Church  v.  Bridgeman,    153,    612,    1016, 

1024,  1582,  1653. 
Churchill  v.  Hunt,  282,  288,  698,  1062, 

1761. 
Churchill  v.  Kimball,  1624,  1733. 
Cilley  v.  Jenness,  1744,  2043. 
Cincinnati  <fec.  Co.  v.  Timberlake,  1 142, 

1156. 
City  of  London  v.  Vanacker,  1281. 
Clapp  v.  Hudson  River  R.  R.  Co.,  1481. 
Clark  v.  Binney,  647,  662,  669,  700. 
Clark  v.  Dibble,  1075,  1077. 
Clark  v.  Dyer,  137. 
Clark  v.  Gilbert,  242. 
Clark  v.  Lamb,  1469. 
Clarke  Munsell,  1013,  1071,  1366. 
Clarke  v.  Albert,  1888. 
Clarke  v.  Creitzburgh,  132. 
Clarke  v.  Freeman,  26. 
Clarke  v.  Mount,  517. 
Clarke  v.  Rankin,  56. 
Clarke  v.  Taylor,  1067,  1068. 
Clarkson  v.  Lawson,  282, 283, 1061,  1800. 
Clarkson  v.  McCarty,  1 029. 
Classon  v.  Bailey,  3. 
Clay  v.  Barkley,  607. 
Clay  v.  Roberts,  702. 
Cleaver  v.  Senaude,  1238. 
Clegg  v.  LafFer,  1672. 
Clement  v.  Chivis,  647,  686. 
Clement  v.  Fisher,  1469, 1585. 
Clement  v.  Lewis,  1148,  1476. 


XVI 


TABLE  OF  CASES. 


Clements  v.  Newcombe,  1358. 

Clerk  v.  James,  1352. 

Cleveland  v.  Detweiler,  516,  532. 

Clift  v.  White,  66. 

Clifton  v.  Wells,  641. 

Clinton  v.  Mitchell,  1395. 

Clissold  v.  Clissold,  1353. 

Clutterbuck  v.  Chaffers,  95,  101. 

Coburn  v.  Harwood,  304,  361. 

Cochran  v.  Butterfield,  2109. 

Cock  v.  Weatherby,  240,  246, 1473,  1811. 

Cockaine's  Case,  388. 

Cockaine  v.  Hopkins,  715. 

Cockayne  v.   Hodgkisson,  654,   1007, 
1212. 

Coffin  v.  Coffin,  1080,  1481,   1589. 

Coghill  v.  Chandler,  1807,  1812. 

Colabyn  v.  Viner,  519. 

Colbert  v.  Caldwell,  1549. 

Colburn  v.  Patmore,  1526. 

Colburn  v.  Whiting,  1319. 

Colby  v.  Reynolds,  647,  669. 

Cole  v.  Fisher,  1. 

Cole  v.  Grant,  510. 

Cole  v.  Perry,  1481,  2051. 

Cole  v.  Wilson,  1214. 

Coleman's  Case,  2087. 

Coleman  v.  Harcourt,  1513. 

Coleman    v.   Playstead,    237,    258,   468, 
1962. 

Coleman  v.  Southwick,  1481,  1545,  2097. 

Coles  v.  Kettle,  763. 

Colis  v.  Malins,  756.  757,  1554. 

Collier  v.  Bourn,  426. 

Collins  y.  Carnegie,  859,  1820. 

Collins  v.  Matthews,  953. 

Colman  v.  Godwin,  137. 

Colomes'  Case,  482. 

Commons  v.  Walters,  477,   1839,  2025, 

2070. 
Commonwealth  v.  Abbott,  1432. 
Commonwealth  v.  Anthes,  1432. 
Commonwealth  v.  Blanding,   111,   1080, 

1916. 
Commonwealth     y.     Buckingham,     132, 

2076. 
Commonwealth  v.  Child,  138. 
Commonwealth  v.  Clapp,  18,  85,  1279. 
Commonwealth  v.  Guild,  1938. 
Commonwealth  v.  Holmes,  1635. 
Commonwealth  y.   Kneeland,   125,    138, 

149. 
Commonwealth  v.  Porter,  1432. 
Commonwealth  v.  Runnels,  137,  139. 
Commonwealth  v.  Snelling,  74,  85, 1701, 

1712. 
Commonwealth  v.  Tarbox,  1635. 
Commonwealth  v.  Varney,  1823. 


Commonwealth  y.  Wright,  647, 920, 1618 

1619,  1626. 
Conro  v.  Port  Henry  Iron  Co.,  1330. 
Conroe  v.  Conroe,  1884,  2042,  2058. 
Cook  v.  Batchelor,  730,  1522. 
Cook  v.  Bostwick,  477,  481. 
Cook  v.  Cox,  1469,  1619,  1623. 
Cook  y.  Ellis,  1466. 
Cook  v.  Field,  1031,  1751,  1972. 
Cook  v.  Gilbert,  244. 
Cook  v.    Hill,  1004,   1192,    1203,    1248 

1481. 
Cook  v.  Stokes,  1850. 
Cook  v.  Ward,  1030,  1923. 
Cook  v.  Wingfield,  641, 1862. 
Cooke  v.  Barkley,  85,  1023,  2070,  2083. 
Cooke  v.  Hughes,  147,  1387,  1641, 
Cooke  v.  Wildes,  1236,  1443,  2006. 
Coombs  v.  Rose,  225,  1169. 
Coons  v.  Robinson,  484,  489. 
Cooper  v.  Barber,  1037,  2063. 
Cooper  v.  Bissell,  1469. 
Cooper  y.  Greely,  18,  20,  147,  209,  660, 

1072,  1412,  1712,  1741,  1764. 
Cooper  v.  Hakewell,  476. 
Cooper  v.  Lawson,  282,  284,  1068,   1070 

1322,  1323,  1417,  1742. 
Cooper  v.  Marlow,  1813,  1815. 
Cooper*'.  Perry,  141. 
Cooper  v.  Smith,  206,  443,  447. 
Cooper  v.  Stone,  647,  663,  679,  694,  1308, 

1311,  1314,  1319. 
Cooper  v.  The  Butcher  of  Croydon ,  1874. 
Cooper  v.  Weed,  1349,  1498. 
Coote  v.  Gilbert,  160. 
Cope  v.  Rowland,  722. 
Core  v.  Morton,  502. 
Cornelius  v.  Van  Slyck,  139,   169,   212, 

253. 
Corner  v.  Shew,  1471. 
Corning  v.  Corning,  1468. 
Cornwall  v.  Gould,  1469. 
Cornwall  v.  Richardson,  1957. 
Cotton's  Case,  898. 
Cousins  v.  Merrill,  1731. 
Coventry  v.  Barton,  1526. 
Cowan  v.  Milbourn,  722. 
Coward  v.  Wellington,  1205. 
Cox  v.  Bunker,  516,  517. 
Cox  y.  Coleridge,  1154. 
Cox  v.  Feeney,  1322. 
Cox  c.  Humphreys,  542. 
Coxw.  Smith,  1091. 
Cox  y.  Thomasou,  1540,  1830. 
Coxhead    v.  Richards,    85,    1005,    1280, 

1258. 
Cracraft  v.  Cochran,  1735. 
Craft  v.  Boite.  1352, 


TABLE  OF  CASES. 


XVll 


Craig  v.  Brown,  379,  927. 

Craig  v.  Catlet,  2102. 

Crain  v.  Petrie,  971. 

Cramer  v.  Noonan,  193,  CG9,  695,  1460, 

1644. 
Cramer  v.  Risjgs,  758. 
Crane  v.  Douglass,  1024. 
Crass  v.  Matthew,  598. 
Crawden  v.  Walden,  880. 
Crawford  v.  Middleton,  1015. 
Crawford  v.  Milton,  482,  1743. 
Crawford  v.  Wilson,  304,  318,  480. 
Crawfoot  v.  Dale,  750,  751. 
Crebnan  v.  Morley,  1073. 
Creelman  v.  Marks,  434,  568,  1815. 
Creevy  v.  Carr,  1079. 
Cregier  v.  Bunton,  1404. 
Croft  v.  Stevens,  1112. 
Crofts  v.  Brown,  160,  372. 
Crone  v.  Angell,  490. 
Crook  v  Averin,  155. 
Crookshank  v.  Gray,  484,  512,  1535. 
Croskeys  v.  O'Driscoll,  614. 
Crosswell  v.  Weed,  1713. 
Crow,  ex  parte,  1154. 
Crozier  v.  The  People,  20. 
Crump  v.  Adney,  1037. 
Cuddington  v.  Williams,  337. 
Cude  v.  Redditt,  1013. 
Culbertson  v.  Stanley,  1811. 
Cullan  v.  Gaylord,  1933. 
Culver  v.  Van  Anden,  1638. 
Cummerford  v.  Mc Avery,  1024. 
Cummin  v.  Smith,  478. 
Cummins  v.  Butler,  1609. 
Cundell  v.  Dawson,  722. 
Cunningham  v.  Brown,  1095. 
Curgee  v.  Hudson,  161. 
Currie  v.  Walter,  1131, 1156,  1911. 
Curtis  v.  Curtis,  261,  277,  390,  564, 1361. 
Curtis  v.  Lawrence,  1468. 
Curtis  v.  Massey,  1961. 
Curtis  v.  Musgrave,  1279. 
Curtis  v.  Mussey,  125,  1013. 
Cutler  v.  Friend.  142. 


D 

Dailey  v.  Reynolds,  516,  .,21. 

Daily  v.  Gaines,  1811. 

Dain  v.  Wyckoff,  47. 

Daines  v.  Hartley,  99,  150,  169. 

Dalrvmple   v.    Lofton,    334,    482,    500, 

1570,  1576. 
Dame  v.  Kenney,  1957. 


Damport  v.  Sympson,  1095. 
Dancaster  v.  Hewson,  1091.  1183. 
Dane  v.  Kenney,  1013. 
Darby  v.    Ouseley,    1002,    1079,    1431, 

1438,  1442 
Darling  v.  Banks,  512. 
Darry  v.  The  People,  71,  77. 
Davidson  v.  Isham,  1. 
Davis  v.  Case,  479. 
Davis  v.  Cutbush,  2097. 
Davis  v.  Davis,  720,  806,  1478. 
Davis  v.  Gardiner,  740. 
Davis  v.  Griffith,  2092. 
Davis  v.  Johnston,  456,  1404. 
Davis  v.  Lewis,  783,  797,  1016 
Davis  v.  Matthews,  1743. 
Davis  v.  Miller,  621,  806. 
Davis  v.  Noah,  383. 
Davis  v.  Noakes,  1624,  1846. 
Davis  v.  Okeham,  448. 
Davis  v.  Ruff,  735,  760. 
Davis  v.  Scott,  1346. 
Davis  v.  Taylor,  341. 
Davison  v.  Duncan,  1083,  1172,  1302. 
Dawes  v.  Bolton,  542. 
Dawling  v.  Venman,  1091,  1094. 
Dawling  v.  Wenman,  1091. 
Day  v.  Bream,  121. 
Day  v.  Buller,  853,  873. 
Dayv.  Robinson,  140,  232,  1469,  1689, 

1716. 
Day  v.  Tuckett,  1364. 
Dayton  v.  Wilkes,  125. 
Deas  v.  Short,  1532. 
De  Bode  v.  Regina,  111. 
Deboux  v.  Lehind,  1630. 
De  Costa  v.  Jones,  1376. 
De  Crespigny  v.  Wellesly.  1030. 
Defries  v.  Davies,  1346,  1985. 
Defries  v.  Davis,  1284. 
Delacroix  v.  Thevenot,  95. 
Delamater  v.  Russell,  24. 
Delany  v.  Jones,  700,  1207. 
Delaware  v.  Powlet,  904. 
Delegal  v.  Highley,    995,    1144,    1730, 

1984. 
Demarest  v.   Haring,  134,  149,  160,304, 

308,  315,  884. 
De  Witt  v.  Greenfield,  2042,  2046. 
Dexter  v.  Spear,  18,  75,  92,  111,  1961. 
Dexter  v.  Taber,  243,  1403,  1406. 
Deyo  v.  Brundage,  1642. 
Dial  v.  Holter,  310,  1166. 
Dias  v.  Short,  134,  542. 
Dibdin  v.  Swan,  956,  1314. 
Dickey  v.  Andrews,  393,  398.    ■ 
Dickey  v.  Andros,  1846. 
Dickinson  v.  Barber,  1280. 


XV111 


TABLE  OF  CASES. 


Dickson  v.  Earl  Wilton,  1198. 

Digby  v.  Thompson,  169,  649,  1653. 

Dillaye  v.  Hart,  13*70. 

Diminock  v.  Fawset,  142. 

Dioyt  v.  Tanner,  1733. 

Ditchen  v.  Goldsmith,  13*76. 

Dixon  v.  Parsons,  1266. 

Dobson  v.  Thornistone,  720,   783,  785, 

796. 
Dod  v.  Robinson,  757,  880,  883,  1554. 
Dodd  v.  Crease,  1497. 
Dodds  v.  Henry,  567,  918,  1175. 
Dodge  v.  Lacey,  184,  202,  1644,  1691. 
Doe  v.  Brayne,  1380. 
Doherty  v.  Brown,  1862. 
Dole  v.  Lyon,  113,  1026,  1029,  1976. 
Dole  v.  Van  Rensselaer,  141,  913. 
Dolevin  v.  Wilder,    1792,    1797,    2018, 

2068,  2079,  2082. 
Dollaway  v.  Turrell,  80,  165,  896,  1031, 

1430. 
Donage  v.  Rankin,  1588. 
Dongate  v.  Gardiner,  965,  1511. 
Donge  v.  Pearce,  1031. 
Dorland  v.  Patterson,  134,  141,  149. 
Darrel  v.  Jay,  1529. 
Dorsey  v.  Whipps,  354,  542,  547,  1528, 

1529,  1644,  1799. 
Doss  v.  Jones,  1744,  2007. 
Dotterer  v.  Bushey,   132,  258,  455,  461, 

1415,  1655,  1656. 
Douge  v.  Pearce,  1901. 
Douglass  v.  Tousey,  20, 1481,  2042,  2056, 

2058. 
Dowd  v.  Winters,  1829. 
Dowling  v.  Brown,  1506. 
Doyle  v.  O'Doherty,  1094. 
Doyley  v.  Roberts,  663,  760,  761,  766. 
Doyton  v.  Rockwell,  507,  512. 
Drake  v.  Drake,  880. 
Drummond  v.  Leslie,  137. 
Dryden  v.  Dryden,  1469. 
Du  Bost  v.  Beresford,  26,  132,  137. 
Dudley  v.  Horn,  320,  615. 
Dudley  v.  Robinson,  261,  441,  449. 
Duel  v.  Agan,  1593. 
Duffy  v.  The  People,  1432. 
Duke  v.  Jostling,  1539. 
Dukes  v.  Clarke,  354,  571. 
Dumont  v.  Smith,  67. 
Duncan  v.  Brown,  134,  160,  378,   1079, 

1441,  1451,  2079. 
DuDcan  v.  Thwaites,  87,  1156. 
Dunckle  v.  Wills,  292. 
Duncombe  v.  Daniell,  1278,  1382. 
Dunham  v.  Bigg,  1221. 
Dunlap  v.  Gladding,  1095. 
Dunn  v.  Hall,  125. 


Dunn  v.  Winters,  1111,  2016. 
Dunn  v.  Withers,  653. 
Dunne  v.  Anderson,  1321. 
Dunnell  v.  Fiske,  236,  237,  321,  1416 
Durant  v.  Durant,  2. 
Durham  v.  Musselman,  57. 
Dutton  v.  Eaton,  636,  638. 
Duvall  v.  Griffith,  1986. 
Dwinell  v.  Aiken,  2024,  2031. 
Dver  v.  Morris,  534. 


E 

Eagan  v.  Gantt,  1031. 

Eagleton  v.  Duchess  of  Kingston,  1091 

Eakin  v.  Evans,  1489. 

Early  v.  Smith,  1367. 

Easley  v.  Moss,  1242,  1815. 

East?).  Chapman,  1159,  2020. 

Eastern     Counties    Railway  v.  Brown, 

1333. 
Easterwood  v.  Quinn,  1024,  2097. 
Eastland  v.  Caldwell,  336,  1046,  2042. 
Eastmead  v.  With,  1269. 
Eastwood  v.  Holmes,  1322. 
Eaton  v.  Allen,  375,  398,  619. 
Eaton  v.  Johns,  291,  1685,  1801. 
Ebersol  v.  King,  1511,  1517. 
Eccles  v.  Shannon,  477. 
Eckart  v.  Wilson,  144,  206,  1548. 
Eddowes  v.  Hopkins,  1469. 
Eden  v.  Legare,  142,  617. 
Edgar  v.  Newell,  1481,  2042. 
Edgerly  v.  Swain,  163,  322,  354,  1528, 

1640,  1852. 
Edmonds  v.  Walter,  1761. 
Edmonson  v.  Stephenson,  1262. 
Edsall  ».  Brooks,  915,  1122,  1150,   1400, 

2004. 
Edsall  v.  Russell,  163,  165,  206,  329,448, 

775,  860,  107S,  1743. 
Edwards  v.  Bell,  292,  889,  1068,  1070, 

1742. 
Edwards'  Case,  43. 
Edwards  v.  Chandler,  1963. 
Edwards  v.  Howell,  754. 
Edwards  v.  Reynolds,  147* >. 
Egerton  v.  Furzman,  1376. 
Eiffe  v.  Jacob,  1287,  1288. 
Elam  v.  Badger,  140,  1618. 
Kldri.lo-e  v.  Bell,  1521. 
Elliott  v.  Ailsberry,  308,  516. 
Elliott  v.  Bo  vies,  1984. 
Ellis  v.  Kimball,  132,  1637. 
Ellis  v.  The  People,  66. 
i  Else  v.  Evans,  1031. 


TABLE  OF   CASES. 


XIX 


Else  v.  Ferris,  783,  794,  2062,  2079. 
Emery  v.  Miller,  141,  1861. 
Emery  v.  Prescott,  1686. 
Emington  v.  Gardiner,  1517. 
Empson  v.  Fairfax,  1497. 
Empson  v.  Fairford,  1414,  1438. 
Empson  v.  Griffin,  1469. 
England  v.  Burke,  1751. 
Engurst  v.  Brown,  820. 
Ense  v.  Adorn,  359. 
Entick  v.  Carrington,  1113. 
Erwin  v.  Sumrow,  1961,  1962. 
Estes  v.  Antrobus,  1961. 
Estes  v.  Carter,  361. 
Evans  v.  Franklin,  1761. 
Evans  v.  Gwyn,  522. 
Evans  v.  Harlow,  130,  980. 
Evans  v.  Harries,  954,  1723. 
Evans  v.  Smith,  1013,  2101. 


F 


Fairchild  v.  Adams,  1164. 

Fairman  v.  Ives,  1033, 1193,  1201,  1961. 

Falkner  v.  Cooper,  132,  519. 

Fallenstein  v.  Boothe,  134,  160. 

Faris  v.  Starke,  1232. 

Farley  v.  Ranck,  1961,  1966. 

Farnsworth  v.  Storrs,  172,    576,    1164, 

1171. 
Farr  v.  Roscoe,  1024. 
Faulkner  v.  Wilcox,  1481. 
Fawcett  v.  Charles,  1121,  1176. 
Fay  v.  Bennett,  1902. 
Feisev.  Linder,  1724. 
Fellows  v.  Hunter,  1755. 
Fenn  v.  Dixie,  143. 
Feray  v.  Foote,  293. 
Ferdon  v.  Cunningham,  722. 
Fero  v.  Ruscoe,  1036,  1037,  1076,  2006, 

2007,  2064. 
Fidler  v.  Delavan,  147,  735,  1037,  1038, 

1039,  1523,  1743,  1753. 
Fidman  v.  Ainslie,  1030. 
Figgins  v.  Cogswell,  1561. 
Finch  v.  Gridley,  722. 
Finden  v.  Westlake,  1207,  1240. 
Findlay  v.  Bear,  245. 
Findlay  v.  Lindsay,  1363. 
Finnerty  v.  Barker,  1618. 
Finnerty  v.  Tipper,  1934. 
First  Baptist  Church  v.  Brooklyn   Fire 

Ins.  Co.  1331. 
First  Baptist  Church  in  Schen.  v.  Schen. 

&  Troy  R.  R.  Co.,  1322. 


Fisbie  v.  Fowler,  516. 

Fish  v.  Dodge,  1. 

Fisher  v.  Atkinson,  388. 

Fisher  v.  Clement,  14112. 

Fisher  v.  Pattison,  2071. 

Fisher  v.  Rotereau,  261,  451. 

Fittler  v.  Veal,  966. 

Fitzgerald  v.  Ferguson,  1396. 

Fitzsimmons  v.  Cutter,  1652. 

Flaming-ham  v.  Boucher,  1987. 

Fleetcraft  v.  Jenks,  1957. 

Fleetwood  v.  Curley,  97,  99,  1706 

Fleming  v.  Jales,  466. 

Flemings.  Newton,  1160. 

Flemington  v.  Smithers,  33. 

Fletcher  v.  Braddyll,  1894. 

Fletcher  v.  Burroughs,  2070. 

Flint  v.  Clarke,  1456,  2042. 

Flint  v.Pike,   1109,  1128,    1134,    1142. 

1145,  1147,  1154,  1765. 
Flower  v.  Pedley,  1816. 
Floyd  v.  Jones,  389. 
Folger  v.  Hoogland,  1154. 
Folsomv.  Brown,  1743,  2024. 
Fonville  v.  Nease.  14,  95,  101. 
Foot  v.  Brown,  806,  878. 
Foot  v.  Tracy,  2042,  2070. 
Forbes  v.  Gregory,  1497. 
Forbes  v.  Johnson,  132,  1091. 
Forbes  v.  King,   140,  142,  165,  166,  646, 

706. 
Forbes  v.  Myers,  1975. 
Forbes  v.  Waller,  66. 
Ford  v.  Bennett,  1621. 
Ford  v.  Johnson,  589. 
Ford  v.  Primrose,  167,  207. 
Fores  v.  Johnes,  1521. 
Forshee  v.  Abrams,  2104,  2108. 
Forster  v.  Browning,  160,  258,  259. 
Forsyth  v.  Edmiston,  117,  1625. 
Forward  v.  Adams,  752,  753,  757. 
Foss  v.  Hildreth,  59. 
Foster  v.  Lawson,  732,  737,  798,  1522. 
Foster  v.  Pointer,  1497,  1889. 
Foster  v.  Small,  142,  774, 1865. 
Foulger  v.  Newcomb,  713,  946. 
Fountain  v.  Boodle,  1274,  1966. 
Fowler's  Case,  865. 
Fowler  v.  Dowdney,  340. 
Fowler  v.  Homer,  1256. 
Fowler  v.  Robbins,  500. 
Fowlesv.  Bowen,    680,    746,    760,   806, 

821,  976,  1259,  1273,  1963. 
Fox  v.  Broderick,  1740. 
Fox  v.  Vanderbeck,  1809,  1812. 
Fradley  v.  Fradley,  2022. 
Francis  v.  Roose,  169,  389,  1661. 
Frcam  v.  Sergeant,  1374. 


XX 


TABLE  OF  CASES. 


Frederitze  v.  Odenwalder,  1*749. 

Freeman  v.  Price,  516,  2046. 

Freeman  v.  Taylor,  516. 

Freethy  v.  Freethy,  1509. 

French  v.  Creash,  349. 

French  v.  Millard,  20. 

Frescoe  v.  May,  1292. 

Frost  v.  Ayer,  432. 

Fry  v.  Bennett,  80,  85,  88,  727,  757,  956, 
1079,  1379,  1384,  1392,  1424,  1443, 
1466,  1469,  1481,  1528,  1532,  1701. 
1745,  1753,  1772,  1795,  1798,  1915, 
1961,  1978,  1979,  1982,  1989,  2098. 

Fryer  v.  Gathercole,  1929. 

Fuller  v.  Dean,  1013,  2042,  2070. 

Fuller  v.  Fenner,  965,  1463. 

Fysh  v.  Thorowgood,  1050. 


G 

Gage  v.   Robinson,    1075,    1077,    1078, 

1559. 
Gage  v.  Shelton,  181,  274,  304,  551,  613, 

1676,  1712. 
Gainford  v.  Tuke,  343. 
Gainsford  v.  Blatchford,  1658. 
Gale  v.  Hays,  1567. 
Gale  v.  Leckie,  1521. 
Gallager  v.  Brundel,  980. 
Galloway  v.  Courtney,   149,  465,    1528, 

2097. 
Gallwey  v.  Marshall,  359,  729,  749,  772, 

880,  884. 
Gandy  v.  Humphries,  1969. 
Gants  v.  Vinard,  2024. 
Gardiner  v.  Helois,  669. 
Gardiner  v.  Hopwood,  755. 
Gardiner  v.  Spurdance,  446. 
Gardiner  v.  Williams,  1660,  1714. 
Gardner  v.  Dyer,  1624. 
Gardner  v.  Slade,  1261,  1272,  1445. 
Garford  v.  Clark,  641. 
Garnett  v.  Derry,  220. 
Garr  v.  Selden,  853,  877,  1094,  1617. 
Garret  v.  Taylor,  2. 
Garrett  v.  Dickerson,  1983,  2006. 
Garrett  v.  Ferrand,  1154. 
Gascoigne  v.  Ambler,  517. 
Gassett  v.  Gilbert,  1253. 
Gates  v.  Bowker,  170,  719,  1823,  1912. 
Gates  v.  Meredith,  1285,  2096. 
Gathercole  v.  Miall,   647,    1305,     1328, 

1925. 
Gaul  v.  Fleming,  465. 
Gawdy  v.  Smith,  591. 


Gay  v.  Horner,  197,  806,  1624. 

Gazynski?*.  Colburn,  1513,  1517. 

Geare  v.  Britton,  1717. 

Geary  v.  Connop,  1812. 

Geary  v.  Physic,  3. 

Gellard  v.  Bates,  1911. 

Genet  v.  Mitchel,  81,  1057,   1375,  1394 

1399,  1421. 
George  v.  Lemon,  1775. 
Gerard  v.  Dickinson,  991. 
Getting  v.  Foss,  1249. 
Gfroever  v.  Hoffman,  1385,  1481. 
Gibbs  v.  Arthur  <fe  Burdell,  1154. 
Gibbs  v.  Dewey,  191,  304,  317. 
Gibbs  v.  Pike,  989. 
Gibbs  v.  Tucker,  493. 
Gibson  v.  Niben,  1501. 
Gibson  v.  Williams,  99,  132,  150,    160, 

1403. 
Giddins  v.  Mirk,  167,  182,  304. 
Gidney  v.  Blake,  132,  149,  1582,  1698. 
Gilbert  v.  Rodd,  222. 
Gilbert  v.  Sheldon,  20. 
Gilbert  v.  The  People,  1091. 
Gilbreath  v.  Allen,  1466. 
Giles  v.  The  State,  115,  668,  1603,  1712. 
Gill  v.  Bright,  463,  465. 
Gillett  ;\  Bullivant,  957,  975. 
Gilman  v.  Lowell,  485,  2018,2042,  2062, 

2068. 
Gilmer  v.  Ewbank,  1079,  1961. 
Gilmore  v.  Borders,  2012. 
Gilpin  v.  Fowler,  1006,  1246,  1448,2006. 
Girard  v.  Risk,  1590. 
Giraud  v.  Beach,  132,  1335. 
Glass  v.  Stewart,  1524. 
Glenw.  Hodges,  111. 
Godfrey  v.  More,  446. 
Godfrey  v.  Owen,  842. 
Godson  ;>.  Home,  1427. 
Goldman  v.  Stearns,  629,  103 L 
Goldstein  v.  Foss,  166,  730. 
Gompertz  v.  Levy,  1644,  1664. 
Goodale  v.  Castle,  432. 
Goodall  v.  Ensall,  1497. 
Goodbread  v.  Leadbitter,  2106. 
Goodburne  v.  Bowman,  1061. 
Goodenow  v.  Tappan,  1114. 
Goodrich  v.  Davis,  132,  169, 1432,  1439, 

1529. 
Goodrich  v.  Stone,  132,  2005. 
Goodrich  v.  Warner,  1828. 
Goodrich  v.  Woolcot,  169,361,  1655. 
Goodspeed  v.  East  Haddam  Bank,  1333. 
Goodwin  v.  Daniels,  2016. 
Gore  v.  Gibson,  1283. 
Gorham  v.  Ives,  198,  399,  406,  1403. 
Gorman  v.  Sutton,  2O07. 


TABLE    OF  CASES. 


XXI 


Goslin  v.  Corry,  1457,  1996. 

Gosling  v.  Morgan,  163,  308,  1469,1528, 

1644. 
Gosslin  v.  Cannon.  1091,  1099. 
Gould  v.  Glass,  161. 
Gould  v.  Hulme,  1091. 
Gould  v.  Oliver,  1469. 
Gould  v.  "Weed,   1393,  2088,  2090,  2107. 
Graham  v.  Jones,  1794. 
Graham  v.  Woodhull,  1887. 
Grant  v,  Astle,  1469. 
Grant  v.  Hover,  2034,  2062. 
Grant  v.  Mosely,  124. 
Graves  v.  Blanchard,  517,  519. 
Graves's  Case,  476. 
Graves  v.  Waller,  1408,  1469. 
Gray  v.  Metcalfe,  756. 
Gray  v.  Nellis,  1610. 
Gray  v.  Pentland,  1120,  1189,  1911. 
Gray  v.  Wayle,  476. 
Grayson  v.  Meredith,  1374. 
Green  v.  Button,  97o,  1000. 
Green  v.  Chapman,  1318. 
Green  v.  How,  517. 
Green  v.  Hudson  River  R.  R.  Co.  33. 
Green  ■».  Lincoln,  425. 
Green  v.  London  Omnibus  Co.,  1332. 
Greene.  Long,  1570. 
Green  v.  Telfair,  1424,  1427. 
Green  v.  Warner,  447. 
Greenslade  v.  Ross,  1353. 
Greeve  v.  Copshill,  912. 
Gregory  v.  Luke  of  Brunswick,  1,  956, 

1036,  1469. 
Gregory  v.  Regina,  659. 
Gregory  v.  Williams,  1459. 
Grenfel  v.  Pierson,  1497. 
Greville  v.  Chapman,  725. 
Griffin  v.  Marguardt,  66. 
Griffith  v.  Lewis,  1470,  1671,  1734, 1736. 
Griffith  v.  Wells,  722. 
Griffiths  v.  Lewis,  116,  163,  783,  813. 
Griggs  v.  Vickroy,  154. 
Grills  v.  Marwells,  1744. 
Grimes  v.  Coyle,  1079, 1L83. 
Grosvenoj  v.  Hunt,  1374. 
Grove  v.  Brandenburg,  1095. 
Grove  v.  Hart,  1511,  1513. 
Grubs  v.  Keyser,  1624. 
Guard  v.  Risk,  527. 
Guildersleeve  v.  Ward,  243. 
Guille  v.  Swan,  84. 
Gulford's  Case,  410. 
(iurneth  v.  Derry,  497. 
Gutsole  v.  Mathers,  1583,  1636. 
Guy  v.  Gregory,  965. 
Gwynnev.  Sharpe,  1949. 
Gyles  v.  Bishop,  868. 


H 


Haddon  v.  Lott,  937. 

Hagan  v.  Hendry,  1740,  1749,  2076. 

Haight    v.   Cornell,    1181,   1197,    1424 

1445. 
Haight  v.  Hoyt,  398. 
Haine  v.  Welling,  1024. 
Haire  v.  Wilson,  53,  1449. 
Hakewell  v.  Ingram,  1432,  1439. 
Hale  v.  Blandy,  1551,  1655. 
Halford  v.  Smith,  1497. 
Hall  v.  Montgomery,  477,  482,  504. 
Hall  v.  Nees,  1734. 
Hall  v.  Weedon,  482. 
Halley  v.  Stanton,  437. 
Halliwood'3  Case,  93. 
Hallock   v.  Miller,  48,  688,  940,    1532, 

1724. 
Hamber  v.  Roberts,  132. 
Hamer  v.  McFarlin,  2042,  2043. 
Hamilton  v.  Dent,  506. 
Hamilton  v.  Glenn,  1398. 
Hamilton  v.  Langley,  1831,  1842. 
Hamilton  v.  Smith,  169. 
Hamilton  v.  Walters,  980,  1723. 
Hampton  v.  Wilson,  1013. 
Hancock   v.  Stephens,    134,    169,    1812, 

2071. 
Hancock  v.  Winter,  382,  1870. 
Hankinson  v.  Bilby,  80,   141,  143,   149, 

150. 
Hanks  v.  Palton,  1618. 
Harcourt  v.  Harrison,  1717,  1957. 
Hardin  v.  Cumstock,  124,  1091. 
Harding  v.  Brooks,  208,  537,  1475. 
Harding  v.  Bullman,  1096. 
Harding  v.  Greening,  124. 
Hardwick  v.  Chandler,  833. 
Hare  v.  Mellor,  1185. 
Hargrave  v.  LeBreton,  80,   84,  130,  982, 

986. 
Harker  v.  Orr,  1469. 
Harper  v.  Delph,  132,  266,  1551,  1582. 
Harman  v.  Brotherson,  1116. 
Harman    v.    Delany,    140,    665,      711, 

1033. 
Harmon  v.  Carrington,  199, 1544. 
Harper  v.  Luff  kin,  47. 
Harris  v.  Amery,  712. 
Harris  v.  Bailey,  752. 
Harris  v.  Burley,  1655. 
Harris  v.  Dixon,  367. 
Harris  v.  Harrington,  1191,  1194. 
Harris  v.  Huntington,  1524. 
Harris  v.  Lawrence,  1805. 
Harris  v.  Porter,  961. 


XX11 


TABLE  OF  CASES. 


Harris  v.  Purdy,  493,  1568,  15*79. 

Harris  v.  Smith,  5*72. 

Harris  v.  Thompson,  1219,   1443,    1447, 

1966. 
Harris  v.  Woody,  482,  1784. 
Harrison  v.  Bevington,  132,  735,  1523. 
Harrisons  Bush,  1012, 1121, 1191,  1201. 

1497. 
Harrison  v.  King,  381,  392,  768. 
Harrison  v.  Pearce,  1292,  1458. 
Harrison  v.  Stratton,  163,  365,376. 
Harrison    v.   Thornborough,    142,    149, 

160,  395,  783,  799. 
Hart  v.  Reed,  680,  1031. 
Hartin  v.  Hopkins,  1480,  1491. 
Hartley  v.  Hering,  955,  1722. 
Hartrauft  v.  Hesser,  1967. 
Hartsock  v.  Reddick,  1091. 
Hartwell  v.  Vesey,  1967. 
Harvey  v.  Boies,  334,  482,  495. 
Harvey  v.  Brand,  140. 
Harvey  v.  Coffin,  132. 
Harvey  v.  Dunlap,  49. 
Harvey  v.  French,  134,  264,  1694,  1712. 
Harwood  v.  Astley,  85,  726,  1279,  1556. 
Harwood  v.  Green,  1203. 
Haskins  v.  Lumsden,  L013,  2071. 
Hastings  v.  Lusk,  85,  1101,  1102,  1103, 

1121. 
Hatch  v.  Potter,  12S0. 
Hatchers.  Rochleau,  132. 
Hawkesw.  Hawkey,  1653,  1663,  1711. 
Hawks  v.  Patton,  149,  1901. 
Hawley  v.  Sidenham,  476. 
Hawn  v.  Smith,  464. 
Haws  v.  Stanford,  477,  1031. 
Haynes  v.  Leland,  1024. 
Hays  v.  Allen,  926. 
Hays  v.  Berryman,  1370. 
Hays  v.  Brierly,  1401,  1706. 
Hays  v.  Hays,  206,  445,  1405. 
Hays  v.  Mitchell,  141,  1650. 
Hayter  v.  Moat,  1469. 
Haythorne  v.  Lawson,  733,  1464,  1522. 
Haywood  v.  Foster,  2069. 
Head  v.  Briscoe,  1525. 
Heake  v.  Moulton,  333,  386,  541. 
Hearne  v.  Stowell,  891,  1125, 1129, 1142, 

1179. 
Heaton  v.  Wright,  1792. 
Hecker  v.  DeGroot,  1340. 
Helly  v.  Hender,  476. 
Helsham  v.  Blackwood,  287,  1062. 
Hemmenway  v.  Woods,  159. 
Hemmings  v.  Gasson,  1412,  1783,  1991. 
Henderson  v.  Broomhead,    1092,    1094, 

1113. 
Henderson  v.  Hale,  680. 


Henken  v.  Guers,  1376. 

Henning  v.  Power,  330,  334. 

Henry  v.  Hamilton,  507. 

Henry  v.  Norwood,  2042,  2060. 

Henshaw  v.  Foster,  3. 

Henson    v.    Veach,    1291,   2062,   2069, 

2070. 
Her  v.  Cromer,  1957. 
Heriot  v.  Stuart,  980,  1312,  1315,  1561. 
Herr  v.  Bamburg,  810,  17">f. 
Herrick  v.  Lapham,  48,  1717. 
Hersh  v.  Ringwalt,  48,  1022, 1813. 
Herver  v.  Dawson,  1220. 
Hesler  v.  Degant,  1394,  1954,  1975. 
Hewit  v.  Mason,  629,  1726. 
Hewlett  v.  Crunch,  1481. 
Hibler  v.  Servoss,  1825. 
Hickinbotham  v.  Leach,  1775. 
Hickley  v.  Grosjean,  1629,  1631. 
Hicks'  Case,  95. 
Hicks  v.  Foster,  1454. 
Hicks  v.  Hollingshead,  520. 
Hicks  v.  Joyce,  517. 
Hicks  v.  Rising,  2032. 
Hicks  v.  Walker,  1718. 
Highmore  v.  Harrington,  1481. 
Hill's  Case,  785. 
Hill  v.  Miles,  1091,  1624,  1848. 
Hill  v.  Sellick,  1116. 
Hill  v.  Ward,  982,  996,  999,  1000. 
Hillhouse  v.  Dunning,  484,  647,  657. 
Hillhouse  v.  Peck,  304,  313,  354,  563. 
Hilliard  v.  Constable,  908. 
Hills  v.  University  of  Oxford,  1301. 
Hilsden  v.  Mercer,  1046. 
Hilton  v.  Playters,  849. 
Hinkman  v.  Firnie,  1380. 
Hitchin  v.  Campbell,  1289. 
Hitchon  v.  Best,  1353,  1894. 
Hix  v.  Drury,  1744, 1766. 
Hoag  v.  Hatch,  304,  312,  562,  1469. 
Hoar  v.  Wood,  1091, 1102,  1108. 
Hoare  v.  Siiverlock,  140,  142,  169,  691, 

1135,1138,1156. 
Hobart  v.  WHkins,  1353. 
Hobkins  v.  Beadle,  354.  • 

Hodgson   v.   Scarlett,  380,   1101,  1106, 

1108. 
Hogg  v.  Dorrah,  134,  929. 
Hogg  v.  Vaughan,  887. 
Hogg  v.  Wilson,  134,  450,  1469. 
Holcombe  v.  Roberts,  1618. 
Holland  v.  Stoner,  160. 
Hollenbeck  v.  Clow,  1746. 
Holley  v.  Burgess,  1957. 
Hollingsworth  v.  Duane,  1154. 
Hollis  r.  Briscow,  906. 
Holly  v.  Burgess,  211. 


TABLE  OF  OASES. 


XXlll 


Holmes  v.  Catesby,  1776. 

Holmes  v.  Johnson,  1196. 

Holsey  v.  Burgess,  345. 

Holt  v.  Muzzy,  1738. 

Holt  v.  Parsons,  1079,  1166,  1983. 

Holt  v.  Scholefield,  43,    163,   326,   332, 

354,  663,  1469,  1662. 
Holt  v.  Taylor,  1529. 
Holton  v.  Muzzy,  1041,  1042,  1654. 
Holwood  v.  Hopkins,  973. 
Home  v.  Bentinck,  1120. 
Homer  v.  Battyn,  2. 
Homer  v.  Taunton,  140. 
Honess  v.  Stubbs,  1746. 
Hooker  v.  Tucker,  1542. 
Hooper  v.  Truscott,  1183. 
Hopkins  v.  Beadle,  477,  482,  1469. 
Hopkins  v.  Smith,  2033. 
Hopton  v.  Baker,  921. 
Hop  wood  v.  Thorn,  354,  888,  1213. 
Horn  v.  Foster,  482,  512. 
Home's  Case,  26. 
Horner  v.  Marshall,  1282. 
Horton  v.  Byles,  1513. 
Horton  v.  Reavis,  1805. 
Hoskins  v.  Tarrence,  476. 
Hosleyw.  Brooks,  1466, 1606, 1969, 1979, 

2103. 
Hosmer  v.  Loveland,  1092,  1121,  1199. 
Hotchkiss  v.  Lothrop,  1976,  2084. 
Hotchkiss  v.  Oliphant,  400,  1029,  2078. 
Hotchkiss  v.  Porter,  1079,  2006. 
Hough taling  v.  Kilderhouse,  1957. 
Houghton  v.  Davenport,  1589. 
House  v.  House,  428. 
How  v.  Prinn,  748. 
Howard  v.  Sexton,  80,  84,  85,  514, 1985, 

1992,  2006. 
Howard  v.  Stephenson,  319,  543. 
Howard  v.  Thompson,  1121,  1194. 
Howe  v.  Buffalo  &  Erie  R.  R.,  1526. 
Howe  v.  Perry,  1969,  2075,  2096. 
Howell  v.  Cheatem,  1995. 
Howell  v.  Howell,  1285,  1958,  2095. 
Hoyle  v.  Cornwallis,  140.. 
Hoyle  v.  Young,  170. 
Hoyt  v.  McKenzie,  26. 
Hoyt/;.  Smith,  1670,  1733. 
Hoyt  v.  Thompson,  111. 
Huckle  v.  Reynolds,  183,  1844. 
Hudson  v.  Garner,  1713,  1961. 
Hudson  v.  Plets,  1506. 
Huff/-.  Bennett,  125,   1156,  1423,  1900, 

1916. 
Huffman  v.  Shumate,  1811. 
Hughes  v.  Reese,  169,  280,  1470,  1734. 
Hughley  v.  Hughley,  134. 
llullv.  Blandy,  1528. 


Hull  v.  Smith,  783,  789. 

Hull  v.  Vreeland,  1351,  1730. 

Humberv.  Ainge,  1224. 

Hume  v.  Arrasmith,  143. 

Humphrey  v.  Douglass,  84. 

Humphries  v.  Parker,  1979. 

Hungerford  v.  Watts,  437. 

Hunt  v.  Algar,  1152,  1410. 

Hunt  v.  Bell,  723. 

Hunt  v.  Bennett,  739,  1276,  1430,  1431, 

1466, 1492,  1587,  1601,  1614. 
Hunt  v.  Jones,  641. 
Hunt  v.  Merry  church,  416. 
Hunt  v.  Thimblethorp,  402. 
Hunter  v.  Hudson  River  R.  R.  Co.,  1332. 
Hunter  v.  The  Publishers   of  the   Pall 

Mall  Gazette,  1087. 
Huntington  v.  Conkey,  1378. 
Huntley  v  Ward,  1215. 
Huron  v.  Smith,  281. 
Hutch  v.  Potter,  1975. 
Hutchins  v.  Blood,  1574. 
Hutchinson  v.  Wheeler,  2068. 
Hutton  v.  Beck,  921. 


Idol  v.  Jones,  241,  587. 

Ingalls  v.  Allen,  132. 

Ingebath  v.  Jones,  419. 

Ingram  v.  Ferguson,  1287. 

Ingram  v.  Lawson,  130,  132,  782,  980, 

1039,  1460. 
Inman  v.  Foster,  1013,  1029,  1987,  2076 
Ireland  v.  Champney,  1503. 
Ireland  v.  McGarvish,  764. 
Ireland  v.  Smith,  142. 
Irwin  v.  Cook,  1484. 
Isley  v.  Lovejoy,  1285,  1812. 
Isham  v.  York,  899. 


Jackson  v.  Adams,  143,  405. 

Jackson  v.  Christman,  132. 

Jackson  v.  Cody,  132. 

Jackson  v.  Goes,  132. 

Jackson  v.  Hopperton,  1462. 

Jackson  v.  King,  132. 

Jackson  v.  Stetson,  1744,  2008,  2043. 

Jackson  v.  Weisinger,  436. 

Jacob  v.  Miles,  157. 


XXIV 


TABLE  OF  CASES. 


Jacobs  v.  Fyler,  354,  484,  488. 

James  v.  Boston,  1195. 

James  v.  Brook,  390,  745,  747,  916. 

James  v.  Clarke,  2111. 

James  v.  Rutledge,  132. 

J' Anson  v.  Stuart,  667, 1031, 1033, 1706, 

1754. 
Jarvis  v.  Hathaway,  1163,  1164,  1443, 

1480. 
Jaycocks  v.  Ayres,  1755. 
Jeffries  v.  Duncombe,  111,  1605. 
Jeffryes  v.  Payhem,  845. 
Jekyll  v.  Moore,  1118. 
Jellison  v.  Goodwin,  1982. 
Jenkins  v.  Cockerham,  1076,  2077. 
Jenkins  v.  Phillips,  1630. 
Jenkins  v.  Smith,  831. 
Jenkinson  v.  Mayne,  385. 
Jenkinson  v.  Wray,  840. 
Jennings  v.  Paine,  1108. 
Jettal  v.  Osborne,  371. 
Jewett  v.  Whitney,  1465. 
Joannes  v.  Bennett,  1233. 
Johns  v.  Gittings,  292,  1055. 
Johnson  v.  Dicken,  350. 
Johnson  v.  Evans,  1091,  1183. 
Johnson  v.  Hudson,  1913. 
Johnson   v.   Robertson,   206,   442,  856, 

879,  1717,  1728. 
Johnson  v.  Shields,  304,  332,  390,  565, 

917. 
Johnson  v.  Sledge,  267. 
Johnson  v.  Stebbins,  647,  648,  925,  1755, 

1768. 
Johnson  v.  Sutton,  1117,  1611. 
Johnson  v.  Tait,  1879. 
Johnston  v.  Lance,  1024. 
Johnston  v.  Laud,  1029. 
Johnston  v.  McDonald.  1494,  1698. 
Johnston  v.  Morrow,  304,  363,  550. 
Jones  v.  Cecil,  1757. 
Jones  v.  Chapman,  231,  462,  1024,  1810. 
Jones,  ex  parte,  1154. 
Jones  v.  Givin,  71. 
Jones  v.  Hearne,  433,  545. 
Jones  v.  Hungerford,  428. 
Jones  v.  Joice,  714. 
Jones  v.  Jones,  1973. 
Jones  v.  Littler,  747,  760,  783,  786. 
Jones  v.  Mackie,  1304. 
Jones  v.  Marrs,  515,  1570,  1577. 
Jones  v.  McDowell,  457. 
Jones  v.  Powell,  853. 
Jones  v.  Rivers,  1404. 
Jones  v.  Stevens,  755,  1546,  2042. 
Joralemon  v.   Pomeroy,   163,  521,  571, 

1653,  1671. 
Jorden  v.  Lyster,  491,  757. 


Justice    v.    Kirlin,    1412,    1941,    1969, 

2090. 


K 

Karney  v.  Paisley,  1979. 

Kay  v.  Fredrigal,  1031. 

Kean  v.  McLaughlin,  511,  1101,  1975 

Kearney  v.  Gough,  1955. 

Keeler  v.  Dusenbury,  1356. 

Keenholts  v.  Becker,  946, 972,  978, 1457, 

1632,  1986. 
Keensle  v.  Sass,  817. 
Kelly  v.  Craig,  1746. 
Kelly  v.  Dillon,  271,  517,  1024,  1031. 
Kelly  v.  Partington,  57,  84,  165,  622, 

925,  937,  939,  940,  946,  1492,  1497, 

1962. 
Kelly  v.  Sherlock,  1324,  1484. 
Kelly  v.  Tinling,  1314,  1329. 
Kelmore  v.  Abdoolah,  1455. 
Kemp  v.  Housgoe,  902. 
Kendall   v.  .Stone,    130,  131,  982,  994, 

1992. 
Kendillon  v.  Maltby,  974,  1113,  1118. 
Kennedy  v.  Dear,  1031. 
Kennedy  v.  Gifford,  143,  144,  170, 1013, 

1992. 
Kennedy  v.  Gregory,  1023,  2097. 
Kennedy  v.  Lowry,~1469,  1624. 
Kenney  v.  McLoughlin,  1013. 
Kent  v.  Bonzey,  2078. 
Kent  v.  David,  1782. 
Kent  v.  Pocock,  901. 
Kerle  v.  Osgood,  906. 
Kerr  v.  Shedden,  980. 
Kerschbaugher  v.  Slusser,  1629,  1632. 
Kershaw  v.  Bailey,  1091. 
Keson  v.  Barclay,  1286. 
Kidder  v.  Parkhurst,  1092. 
Killick  v.  Barns,  408. 
Kimmel  v.  Kimmel,  20. 
Kincade  v.  Bradshaw,  2024,  2028,  2031. 
Kine  v.  Sewall,  1005,  1183,  1226,  1962. 
King  v.  Bagg,  160. 
King's  Case,  586,  665. 
King  v.  Fisher,  1154. 
King  v.  Lake,  15,  140,  146. 
King  v.  Parsons,  1033. 
King  v.  Root,  20.  1121. 
King  v.  Shore,  826,  841. 
King  v.  Waring,  116,  1263,  1288,  1730, 

1958. 
King  v.  Watts,  1227. 
King  v.  Whitley,  1810. 


TABLE  OF  CASES. 


XXV 


King  v.  Wood,  142,  617. 

Kingsley  v.  Bill,  1469. 

Kinney  v.  Hosea,  304,  324,  1466,  1961. 

Kinney  v.  Nash,  746,  748, 761, 893, 1818, 

1951. 
Kirby  v.  Simpson,  1892. 
Kirk  v.  Nowell,  1744. 
Kirkaldy  v.  Paige,  1393,  2001. 
Kirksey  v.  Fike,  213. 
Kitchenman  v.  Skeel,  1471. 
Klein  v.  Hentz,  1513. 
Kloppenburg  v.  Neefus,  1348. 
Knickerbacker  v.  Colver,  1287. 
Knight  v.  Foster,  1466,  2069. 
Knight  v.  Gibbs,  941,  957,  1241. 
Knight  v.  Knight,  1154. 
Knight  v.  Wilcox,  46,  47. 
Knightly  v.  Birch,  1471. 
Knightly  v.  Marrow,  1669. 
Knobel  v.  Fuller,  2070. 
Koenig  v.  Ritchie,  1204,  1250. 
Kramer  v.  Waymark,  1503. 
Krebs  v.  Oliver,  1234. 
Krom  v.  Schoonmaker,  81,  1280. 


Lafone  v.  Smith,  1287,  1497. 

Laine  v.  Wells,  2015. 

Lake  v.  Hutton,  1031,  1033. 

Lake  v.  King,  1082,  1091,  1092,  1186. 

Lamb's  Case,  1597. 

Lamos  v.  Snell,  2042,  2046,  2049. 

Lancaster  v.  French,  819. 

Lancey  v.  Bryant,  1444. 

Landis  v.  Shanklin,  2024. 

Lane  v.  Applegate,  1286,  1288. 

Lane  v.  Howman,  1766. 

Langdon  v.  Young,  111,  350*,  352. 

Langley  v.  Colson,  422. 

Lansing  v.  Carpenter,  647,  892,  922. 

Lanter  v.  McEwen,  1975. 

Larned  v.  Buffington,  1969,  2075  2078, 

2079. 
Lassels  v.  Lassels,  906. 
Lathrop  v.  Hyde,  1091,  1183. 
Laurie  v.  Wells,  474. 
Law  v.  Cross,  1400. 
Laws.  Scott,  1277,  1911. 
Lawler  v.  Earle,  1217,  2068. 
Lawson's  Case,  117. 
Lawton  v.  Hunt,  1753. 
Lawyer  v.  Smith,  1480. 
Lay  v.  Lawson,  1207,  1208. 
Layer's  Case,  1909. 


Lay  ton  v.  Harris,  14,  121. 

Lea  v.  White,  1091,  1099. 

Leach  v.  Thomas,  1469. 

Lee  v.  Bennett,  1934. 

Lee  v.  Huson,  1972. 

Lee  v.  Kane,  1618. 

Lee  v.  Robertson,  477,  1395,  2007. 

Lee  v.  Swan,  759. 

LeFanu  v.  Malcolmson,  132,  732,  1522, 

1705. 
Lehman  v.  City  of  Brooklyn,  33. 
Leister  v.  Smith,  1020,  2097. 
LeMerchant's  Case,  1909. 
Lent  v.  Butler,  1395. 
Lenthall's  Case,  572,  898. 
Leonard  v.  Allen,  132,  1942, 1960,  2019, 

2055. 
Lester  v.  Wright,  2089. 
Letton  v.  Young,  1973,  1998. 
Lever  v.  Torrey,  1461. 
Levermore  v.  Martin.  484. 
Levi  v.  Milne,  1430,  1439,  1486. 
Lewin  v.  Edwards,  1469. 
Lewis  v.  Acton,  172. 
Lewis  v.  Allcock,  60. 
Lewis  v.  Babcock,  1520. 
Lewis  v.  Black,  492,  1039,  1571. 
Lewis  v.  Chapman,  76,  85,   784,   1229, 

1244,  1409. 
Lewis  v.  Clement,  1148. 
Lewis  v.  Few,  1095,   1172,   1178,  1279, 

1373,  1899. 
Lewis  v.  Hawley,  783,  790. 
Lewis  v.  Levy,  169,   1121,   1142,   1144, 

1153,  1155,  1162. 
Lewis  v.  Niles,  1013. 
Lewis  v.  Soule,  132,  482. 
Lewis  v.  Walter,  292,   709,  1019,  1028, 

1143,  1765,  1822. 
Leycroft  v.  Dunkin,  796. 
Liddle  v.  Hodges,  80,  1218, 1962,  2006. 
Lidster  v.  Borrow,  1342. 
Like  v.  McKinstry,  982,  998,  1000. 
Lillie  v.  Price,  85,  2016. 
Lincoln  v.  Chrisman,  1987,  2050. 
Linden  v.  Graham,  130,  982,  995. 
Lindley  v.  Horton,  679,  778. 
Lindsey  v.  Smith,  562,  1582,  1652. 
Linney  v.  Malton,  517,  2078. 
Linville  v.  Earlywine,  111,350. 
Lipe  v.  Eissenlord,  47. 
Lister  n.  McNeal,  1889. 
Lister  v.  Wright,  111. 
Litman  v.  West,  843. 
Little  v.  Barlow,  417. 
Littlejohn  v.  Greeley,  80,  88,   696,   739, 

758,  1378,  1983. 
Litton  v.  Young,  1481. 


XXVI 


TABLE  OF  CASES. 


Livingston  v.  Cheatham,  680. 

Livingston  v.  Rogers,  1469. 

Lloyd  v.  Morris,  1469,  1470. 

Lockwood  v.  Lockwood,  2. 

Logan  v.  Steele,  182,  275. 

London  v.  Eastgate,  818,  870. 

Long  v.  Brougher,  1039,  1079. 

Long  v.  Chubb,  1954,  1986. 

Long  v.  Eakle,  1280, 1439. 

Long  v.  Fleming,  1864. 

Long  v.  Hitchcock,  1505. 

Long  v.  Long,  1511,  1513. 

Longman  v.  Pole,  1523. 

Loomis  v.  Levick,  1534. 

Loomis  v.  Swick,  1812. 

Loubz  v.  Hufner,  1. 

Loughead  v.  Bartholomew,  1376. 

Lovett  v.  Weller,  991. 

Lowe  v.  Harwood,  43,  131,  993. 

Loyd  v.  Pearce,  421. 

Lucan  v.  Cavendish,  1353. 

Lucanv.  Smith,  1748,  2017. 

Lucas  v.  Nichols,  523,  1404. 

Ludwell  v.  Hole,  806. 

Lumby  v,  Allday,  744,  770,  1799. 

Lumley  v.  Gye,  970. 

LumpMns  v.  Justice,  154,  1528. 

Luthan  v.  Berry,  2078. 

Luther  v.  Sheen,  2047,  2057. 

Lyle  v.  Classon,  94,  101, 1469,  1602. 

Lynch  v.  Henderson,  1355. 

Lynch  v.  Knight,  944. 


M 

McAlexander  v.  Harris,  549,  2103,  2106. 
McAlister  v.  Sibley,  2062. 
McAnnally  v.  Williams,  221. 
McBean  v.  Williams,  1874. 
McBrayer  v.  Hill,  516,  521. 
McBride  v.  Ellis,  690. 
McCabe  v.  Cauldwell,  1159. 
McCabe  v.  Platter,  1957,  2042. 
McClaughry  v.  Wetmore,  484,  511,  1646. 
McClintock  v.  Crick,  1813,  2079. 
McClurg  v.  Ross,  281,  355. 
McCluskey  v.  Cromwell,  129,  1671. 
McCombs   v.   Tuttle,    102,    1815,    1898, 

1935. 
McConnell  v.  McCoy,  1811. 
McCorkle  v.  Binns,  85,  661,  674,  1917. 
McCuen  v.  Ludlam,  278,  304,  313,  354, 

563,  926,  933,  1644. 
McDanicl  v.  Baca,  130,  982,  990,  997. 
McDonald  v.  Murchison,  1995. 


McDougall  v.  Claridge,  1211. 
McDougall  v.  Sharp,  1481. 
McGee  v.  Sodusky,  1957. 
McGee  v.  Wilson,  308,  516. 
McGlenery  v.  Keller,  1975,  2034. 
McGough   v.   Rhodes,   482,   512,    1529, 

1784. 
McGovern  v.  Manifee,  1940. 
McGowan  v.  Manifee,  134. 
McGrath  v.  Cox,  1908. 
McGregor  v.  Gregory,  140,  292,  1801. 
McGregor  v.  Thwaites,  647,  1030,  1121. 
McGuire  v.  Blair,  894. 
Mcintosh  v.  Matherly,  1897. 
Mclvor  v.  McCabe,  111. 
McKee   v.   Ingalls,   85,  262,  365,  1280, 

1283,  1814,  1961,  1962. 
McKennon  v.  Geen,  455. 
McKinly  v.  Rob,   149,  513,  1037,  1403, 

1424,  2032. 
McLaughlin  v.  Russell,  1927. 
McLeod  v.  Murphy,  757. 
McLoughlinv.  Russell,  132. 
McManus  v.  Jackson,  482,  618. 
McMillen  v.  Birch,  627,  711,  883, 1107. 
McNab  v.  McGrath,  178,  428. 
McNally  v.  Oldham,  18,  1053,  1731. 
McNaught  v.  Allen,  1867. 
McNutt  v.  Young,  2042. 
McPherson  v.  Daniels,  85,  86,  1019. 
MacGill,  Ex  parte  1091. 
Macauley  v.  Schackell,  1358. 
Mack  ay  v.  Ford,  1104. 
Macleod  v.  Wakley,  1313. 
Maconnehey  v.  The  State,  1280. 
Madison  Ave.  Baptist  Church.  Re  982. 
Magee  v.  Stark,  499. 
Maitland  v.  Bramwell,  1194. 
Maitland  v.   Goldney,  43,  58,  85,  732, 

1018. 
Malachy  v.   Soper,  131,  980,  981,  992, 

995,  1000. 
Mallison  v.  Sutton,  132. 
Malone  v.  Stewart,  516,  623,  776. 
Malone  v.  Still  well,  118. 
Malouy  v.  Dows,  1719. 
Manby  v.  Witt,  1009,  1256,  1269. 
Mangan  v.  Atterton,  124. 
Manly  v.  Cory,  1860. 
Manning  v.  Clements,  725,  1749. 
Manning  v.  Fitzherbert,  1730. 
Mapes  v.  Weeks,  1013,  1024,  1029,  2078. 
Maretzek  v.  Cauldwell,  1773,  1793. 
March  v.  Davison,  157,  724,  856,  1358. 
Markham  v.  Russell,  2096. 
Marsden  v.  Henderson,  1705. 
Marshall  v.  Addison,  557. 
Marshall  v.  Dean,  498. 


TABLE   OF   CASES. 


XXV11 


Marshall  v.   Gunter,  1091,   1099,  1419, 

1469. 
Marston  v.  Dennis,  5*72. 
Marten  v.  Van  Schaick,  126. 
Martin  v.  Desnoyer,  237,  466. 
Martin  v.  Kennedy,  1349. 
Martin  v.  Mattison,  1730. 
Martin  v.  Melton,  482. 
Martin  v.  Nutkin,  1. 
Martin  v.  Stillwell,  304,  309,  559. 
Martin  v.  Strong,  1239. 
Martyn  v.  Burlings,  834. 
Masham  v.  Bridges,  903. 
Mason  v.  Keeling,  1280. 
Mason  v.  Mason,  1961. 
Mason  v.  Thompson,  166. 
Matthew  v.  Crass,  950. 
Matthews  v.  Beach,   1156,   1424,  1435, 

1452,  1798,  1804. 
Matthews  v.  Davis,  2037,  2046. 
Matthews  v  Huntley,  1957. 
Maxwell  v.  Allison,  132. 
May  v.  Brown,  1830,  1934,  2084,  2106. 
Maybee  v.  Avery,  2029. 
Maybee  v.  Fisk,  132,  150. 
Mayer,  Be,  1154. 

Maynard  v.  Beardsley,  2085,  2090,  2107. 
Mayne  v.  Digle,  326. 
Mayne  v.  Fletcher,  121,  126,  1921. 
Mayott  v.  Gibbons,  403. 
Mayrantw.  Richardson,  684,  1279. 
Mays  v.  Sample,  547. 
Mayson  v.  Sheppard,  456,  1479. 
Mead  v.  Daubigny,  1986. 
Mead  v.  Perkins,  844. 
Meade  v.  Axe,  129. 
Mears  v.  Griffin,  1455,  1484. 
Mebane  v.  Sellars,  482. 
Melton  v.  The  State,  652. 
Mercer  v.  Sparks,  85. 
Mercer  v.  Whall,  1378. 
Merchant's  Bank  v.  Curtis,  1287. 
Merrill  v.  Peaslee,  1813,  1814. 
Merry  weather  v.  Nixon,  1526. 
Mersey  Nav.  Co.  v.  Douglass,  111. 
Metcalf  v.  Markham,  1353. 
Metcalf  v.  Williams,  1 906. 
Metropolitan    Saloon    Omnibus   Co.    v. 

Hawkins,  1337,  1365. 
Meyer  v.  Schultz,  1798. 
Mezzara's  Case,  137. 
Milam  v.  Burnsides,  1121. 
Miles  v.  Oldfield,  554. 
Miles  v.  Spencer,  1013,  1027. 
Miles  v.  Van  Horn,  142,  528,  529,  1885, 

1957. 
Miller   v.    Butler,    113,    115,    132,   647, 

1524,  1962. 


Miller's  Case,  636. 

Miller  v.  Fenton,  1526. 

Miller  v.  Graham,  1746. 

Miller  v.  Houghton,  529. 

Miller  v.  Kerr,  1024,  1992. 

Miller  v.  Maxwell,  132,  141. 

Miller  v.   Miller,    152,    182,   546,  1811, 

1813. 
Miller  v.  Parish,  307,  522,  1553,  1706. 
Millett  v.  Hulton,  666. 
Milligan  v.  Thorn,  1582,  1653,  1733. 
Millison  v.  Sutton,  2007. 
Mills  v.  Taylor,  195,  436. 
Mills  v.  Wimp,  308,  553. 
Minesinger  v.  Kerr,  2066,  2069. 
Minter  v.  Stewart,  294. 
Mitchell  v.  Borden,  1075,  1077,  1791. 
Mitchell  v.  Jenkins,  71. 
Mix  v.  Woodward,  132,  218,  1424,  1670. 
Moberly  v.  Preston,  516,  571, 1013, 1019. 

1029. 
Moises  v.  Thornton,  863,  1566. 
Moloney  v.  Bartley,  1121,  1340,  1918. 
Moloney  v.  Dows,  111. 
Monkman  v.  Shepherdson,  292. 
Montgomery  v.  Deeley,  352. 
Montgomery  v  Richardson,  1744. 
Montifiore  v.  Montifiore,  2098. 
Moody  v.  Baker,  969,  973,  1481. 
Moon  v.  Towers,  124. 
Moor  v.  Foster,  759. 
Moore  v.  Amens,  1113. 
Moore  v.  Bennett,  165,  665. 
Moore  v.  Bond,  1809. 
Moore  v,  Clay,  2091. 
Moore  v.  Horner,  503. 
Moore  v.  Meagher,  933,  945. 
Moore  v.  Oastler,  1926,  2091. 
Moore  v.  Stevenson,  1079,  1982. 
Moore  v.  Syme,  757. 
Moore  v.  Terrill,  1068. 
Morehead  v.  Jones,  147. 
Morey  v.  Newfane  Township,  1286. 
Morgan  v.  Lingen,  684. 
Morgan  v.   Livingston,    132,  137,    458, 

484,  1581, 1815,  2000. 
Morris  v.  Barker,  1979,  2070. 
Morris  v.  Barkley,  571. 
Morris  v.  Belcher,  1322. 
Morris  v.  Duane,  1023. 
Morris  v.  Langdale,  715,  717,  2042. 
Morrison  v.  Harmer,  1067,  1068,  2035, 
Morrison  v.  Moate,  1154. 
Moscati  v.  Lawson,  1526. 
Moseley  v.  Moss,  1031,  1618,  1655,  1712. 
Moshier  v.  Utica  &  Sch.  R.   R.  Co.,  1. 
Mostyn  v.  Fabrigas,  111. 
Motley  v.  Slany,  432. 


xxvm 


TABLE  OF  CASES. 


Mott  v.  Conistock,  783,  800. 

Moulton  v.  Clapham,  1154. 

Mountney  v.  Watton,  292,  1036,  1151. 

Mower  /'.  Watson,  509. 

Moyer  v.  Pine,  1079,  2070. 

Muchle  v.  Mulhollen,  508. 

Muck's  Case,  1684. 

Mulvehall  v.  Milward,  47. 

Mumai'.  Harmer,  1766. 

Munn  v.  More  wood,  161. 

Murphy  v.  Antley,  255. 

Murphy  v.  Stout,  2007. 

Murray  v.  DeGross,  1344. 

Musgrove  v.  Bovey,  886. 

Myers  v.  Curry,  1481,  2042. 

Myers  v.  Malcolm,  1979,  2094. 


N 

Naber  v.  Miecock,  160. 

Nail  v.  Hill,  1778. 

Napier  v.  Daniell,  1477,  2027. 

Nash  v.  Benedict,  672,  1977,  2086.  ' 

Neal  v.  Lewis,  1469,  1481. 

Neal  v.  Mallard,  531. 

Nearing  v.  Bell,  1383. 

Needham  v.  Dowling,  1KM.' 

Nelson  v.  Evans,  1013. 

Nelson  v.  Musgrave,  276,  675,  1045. 

Nelson  v.  Patrick,  292. 

Nelson  v.  Robe,  1095. 

Nelson  v.  Staff,  599,  952. 

Nesmith  v.  Atlantic  Mut.  Ins.  Co.,  1375. 

Nestle  v.  Van  Slyke,  1582, 1812,  1814. 

Netle  v.  Harrison,  1483. 

Nettleton  v.  Dinehart,  1502. 

Newbitw.  Statuck,477,  2024,  2031,  2034. 

Newbraugh  v.  Curry,  18,  1582. 

New  Haven  R.  R.  Co.  v.  Schuyler,  1332. 

Newlyn  v.  Fassett,  333,  546. 

Newman  v.  Bailey,  1771. 

Newman  v.  Harrison,  1795. 

Newman  v.  Otto,  1793,  1798. 

Newton  v.  Masters,  559. 

Newton  v.  Rowe,  1346,  1511. 

Newton  v.  Stubbs,  905,  1620. 

Nichols  v.  Badget,  556. 

Nichols  v.  Guy,  629. 

Nichols  v.  Hayes,  432,  1814,  1835. 

Nichols  v.   Packard,   1497,    1644,  1650, 

1653. 
Nichols  v.  The  People,  143. 
Nicholson  v.  Lynes,  772,  882. 
Niven  v.  Munn,  515,  1576,  1581,  1637. 
Nixon's  Case,  1154. 


Norman  v.  Simons,  964. 
Norris  v.  Smith,  1342. 
Norton  v.  Gordon,  1809. 
Norton  v.  Ladd,  141,  248. 
Nutfs  Case,  121,  126. 
Nutting  v.  Goodridge,  1505. 
Nye  v.  Otis,  254,  273,  1624. 


o 

Oakes  v.  Barrett,  1481. 

Oakley  v.  Farrington,  589,  763. 

Obaugh  v.  Finn  650,  806. 

O'Brien  v.  Bryant,  1039. 

O'Brien  ^.Clements,  132,  648, 1287, 1304, 

1583,  1747,  2016. 
O'Brien  v.  The  People,  1280. 
O'Connell  v.  Mansfield,  292,  789,   1036, 

1742. 
O'Connor  v.  Lloyd,  167. 
O'Connor  v.  Wallen,  1777. 
Odiorne   v.  Bacon,  362,  594,  731,  806, 

1038. 
O'Donaghue  v.   McGovern,  1121,    1167, 

1184,  1195,  2015. 
Offuttw.  Earlywine,  111,  350,  2025. 
Ogden  v.  Riley,  134,  160,  249,  262. 
O'Hanlon  v.  Myers,  357,  627,  883. 
Oldham  v.  Peake,  1683. 
Oliver  a.  Bentinck,  1119,  1911. 
Olmstead  v.  Brown,  942,  965,  972. 
Ohnstead  v.  Miller,  947,  1809,  1941. 
Ombony  v.  Jones,  790. 
OdsIow  v.  Home,  10,  43,  332,  663,  742, 

928. 
Opdyke  v.  Marble,  1357. 
Opdyke  v.  Weed,  1613. 
Oram  ;-.  Franklin,  752,  894. 
Ormsby  v.  Brown,  1746. 
Ormsby  v.  Douglass,  1037. 
Orpwood  v.  Barkes,  286,  1845. 
Orpwood  v.  Parkes,  286. 
Orton  v.  Fuller,  426,  479. 
Ostrom  v.  Calkins,  719,  783,  792,  1481, 

2100. 
Owen  v.  McKean,  512,  1351,  2062,  2i>68. 
Owsley   v.  Montgomery,  <fec.   R.  R.  Co. 

1333. 


Packer  v.  Spangle,  482. 
Paddock  v.  Salisbury,  1492,  2042. 
Padmore  v.  Lawrence,  1183,  1257,  1446. 
Padwick  v.  Wittcomb,  20. 


TABLE  OF  CASES. 


XXIX 


Page  v.  Fawcett,  140. 

Page  v.  Hatchett,  292. 

Paine  v.  Prestney,  544. 

Pallet  v.  Sargent,  1044,  2007,  2036,  2105. 

Palmer  v.  Edwards,  233,  909. 

Palmer  v.  Haight,  1*786. 

Palmer  v.  Haskins,  1979,  2094. 

Palmer  v.  Hunter,  1581. 

Paris  v.  Leavy,  1322. 

Parke  v.  BlacMnston,  1961. 

Parker  «/.  Lewis,  453. 

Parker  v.   McQueen,  1013,   1024,   1748, 

1789. 
Parker  v.  Meade,  186. 
Parker  v.  Mitchell,  1108. 
Parker  Mills  v.  Commissioners  of  Taxes, 

712. 
Parker  Mills  v.  Jacot,  66. 
Parker  v.  Raymond,  1551,  1705. 
Parkhurst  v.  Ketchum,  2042,  2046. 
Parkins  v.  Scott,  112,  944. 
Parmer  v.  Anderson,  144. 
Parmeter  v.  Coupland,  647,  1325,  1433, 

1436. 
Par  ret  v.  Par  ret,  539. 
Parrett  v.  Carpenter,  772,  886. 
Parrett  Nav.  Co.  v.  Stower,  1804. 
Parry  v.  Collis,  1562. 
Parsons  v.  Bellows,  1624. 
Parsons  v.  Young,  294. 
Pasley  v.  Freeman,  1259. 
Pasley  v.  Kemp,  1837. 
Passie  v.  Mondford,  398. 
Pater  v.  Baker,  181,  985,  993,  1889. 
Patten  v.  Greely,  1469. 
Patterson  v.  Collins,  542. 
Patterson  v.  Edwards,  204,  1644,  1650, 

1815. 
Pattersons  Jones,  1011,  1227, 1230, 1275, 

1445,  1962. 
Patton  v.  Hamilton,  1486. 
Paul  v.  Harden,  1469. 
Payne  v.  Beaumorris,  886. 
Payson  v.  Macomber.   1624,  1746,  1849. 
Peake  v.  Oldham,  217,  397,  566. 
Pearce's  Case,  140. 
Pearce  v.  Ormsby,  1974,  1992. 
Pearce  v.  The  State,  1432. 
Pearce  v.  Whale,  755. 
Pearson  v.  Lemaitre,  1984,  1992. 
Pearson  v.  Pickett,  1346. 
Pearson  v.  Skelton,  1526. 
Pechell  v.  Watson,  1522, 
Peck  v.  Ellis,  1526. 
Pegram  v.  Styron,  141, 
Pelton  v.  Ward,  332,  487. 
Pemberton  v.  Colls,  889, 1469. 
Penfold  v.  Westcote,  141,  261. 
Pennyman  v.  Rabanks,  991. 


Penson  v.  Gooday,  103. 

Pentersw.  England,  118. 

Pepper  v.  Gay,  906. 

Percival  v.  Hickey,  84. 

Perdue  v.  Burnett,  304,  308,  314,  550. 

Perkins    v.   Mitchell,   685,    1004,    1184, 

1199,  1717. 
Perrott  v.  Morris,  1362. 
Perry  v.  Mann,  141,  144,  190,  1031. 
Perselly  v.  Bacon,  494. 
Petrie  v.  Rose,  1957,  2065,  2093. 
Phil.  R.  R.  Co.  v.  Quigley,  1250,  1341, 

1457. 
Phillips  v.  Badly,  881. 
Phillips  v.  Barber,  127,  241,  473. 
Phillips  v.  Beene,  1854. 
Phillips  v.  Chapman,  1353. 
Phillips  v.  Hoeffer,  783. 
Phillips  v.  Jansen,  95, 101, 107,  767.  830. 
Phillips  v.  Odell,  1811. 
Phillips  v.  Wiley,  571. 
Phincle  v.  Vaughan,  482,  486. 
Pickard  v.  Collins,  84. 
Pickford  v.  Gutch,  862. 
Pierrepoint  v.  Sharpland,  1389. 
Pierson  v.  Stroitz,  417. 
Pigot's  Case,  1031. 
Pike  v.  Hanson,  2. 
Pike  v.  Van  Wormer,  134,  140, 153,  160, 

535,  536,  635,  1532,  1737. 
Pinckney  v.  Collins,  1353. 
Pines  v.  Wythe,  1000. 
Pippet  v.  Hearn,  1624. 
Pisani  v.  Lawson,  1499. 
Pitt  v.  Donovan,  987. 
Pizani  v.  Lawson,  1349. 
Pledger  v.  Hatchcock,  517. 
Plunkett  v.  Cobbett,  1033,  1911,  1975. 
Poe  v.  Grever,  320,  336,  350. 
Poe  v.  Mendford,  856. 
Pond  v.  Hartwell,  1624. 
Pool  v.  Deveres,  1467,  2007. 
Pool  v.  Sacheverel,  1154. 
Pope  v.  Welsh,  2042. 
Popham  v.  Pickburn,  1126,  1180,  1326. 
Poplett  v.  Stockdale,  1521. 
Poppenheim  v.  Wilkes,  1013,  1843. 
Porter  v.  Henderson,  2089,  2100,  2106. 
Porter  v.  Hughey,  620. 
Porter  v.  McCreedy,  1743. 
Portman  v.  Stowell,  541. 
Potter  v.  Thompson,  1485,  1606,  1823. 
Potts  v.  Pace,  1945. 
Poturite  v.  Barrel,  574. 
Powell  v.  Jones,  279,  872. 
Powell  v.  Plunkett,  166,  354,  1079. 
Power  v.  Henning,  2022. 
Power  v.  Miller,  482. 
Powers  Price,  512,  1576. 


XXX 


TABLE  OF  CASES. 


Powers  v.  Dubois,  693,  739. 

Powers  v.  Presgroves,  2055,  2079. 

Powers  v.  Skinner,  1037,  1054. 

Powers  v.  Smith,  1444. 

Powis  v.  Smith,  66. 

PreckiDgton's  Case,  641. 

Prettyman  v.  Schockley,  783,  793. 

Price  «.  Wall,  1984. 

Prichard  v.  Lloyd,  474. 

Pridham  v.  Tucker,  759. 

Prinn  v.  Howe,  375,  739,  748. 

Prior  v.  Wilson,  659,  813. 

Pritchard  v.  Corporation  of  Georgetown, 

1332. 
Proctor  v.  Owens,  533,  1806. 
Proed  v.  Johnes,  853,  874. 
Prudhomme  v.  Frazer,  1891. 
Prynne  v.  Brown,  1497. 
Puckett  v.  Greatrex,  84. 
Pugh  v.  Neal,  1570. 
Purdy  v.  Carpenter,  86. 
Purdy.  v.  Stacy,  562,  673,  1637. 
Purple  v.  Horton,  1812,  2062,  2068. 
Pursell  v.  Archer,  1813. 
Pybus  v.  Scudamore,  1353. 
Pye  v.  Wallis,  949. 


Q 


Quigley  v.  Phil.  <fcc.  R.  R.  Co.,  2100. 
Quinn  v.    O'Gara,  260,    304,   308,  587, 

592,  658. 
Quinn  v.  Wilson,  1750. 


R 

Raikes  v.  Richards,  1931. 

Rainey  v.  Thornbury,  492. 

Ralph  v.  Davye,  132. 

Ram  v.  Lamley,  1089. 

Ramsdale  v.  Greenacre,  1890. 

Ramsey  v.  Elms,  170. 

Randall  v.  Holsenbake,  1044, 1046,  1987. 

Randle  v.  Beal,  600,  958. 

Ranger  v.  Goodrich,  2079, 

Rangier  v.  Hummell,  132, 1508,  1947. 

Ratcliffv.  Long,  152. 

Ratcliffe  v.  Shubley,  460. 

Rathbun  v.  Emigh,  751,  1733. 

Rayner  v.  Kinney,  2007. 

Read  v.  Ambridge,  149,  169,  383. 

Read  v.  Hudson,  783,  795. 

Re  Bronson,  1154. 

Re  Chaplin,  1304. 

Re  Clements,  1304, 


Re  Crawford,  1154. 

Rector  v.  Smith,  1114,  1116,  1957 

Redfern  v.  Todd,  573. 

Redman  v.  Pyne,  876. 

Redway  v.  Gray,  354, 429,  431,  760. 

Reeks  v.  Cooper,  440. 

Re  Eliz.  Mayer,  1154. 

Reeves  v.  Templar,  1424. 

Regina  v.  Boardman,  67. 

Regina  v.  Browne,  1402. 

Regina  v.  Bull,  50. 

Regina  v.  Duffy,  1304. 

Regina  v.  Gathercole,  38. 

Regina  v,  Hetherington,  38. 

Regina  v.  Langley,  9,  910. 

Regina  v.  Lovett,  1932. 

Regina  v.  Marshall,  224. 

Regina  v.  Mawgridge,  75. 

Regina  v.  Millis,  11. 

Regina  v.  Newman,  1013. 

Regina  v.  Thompson,  161. 

Regina  v.  Toxbys,  8. 

Regina  v.  Verrier,  1469,  1645. 

Regnier  v.  Cabot,  2065,  2069,  2072. 

Re  Gregory,  1304. 

Rehauser  v.  Schwerger,  1629,  1620. 

Reid  v.  Delorme,  1187, 

Reignold's  Case,  752. 

Remington  v.  Congdon,  1163, 1170,2018. 

Respublica  v.  Oswald,  1154. 

Re  Spooner,  1154. 

Reston  v.  Pomfreicht,  948. 

Re  Strong,  1154. 

Re  Van  Hook,  1154. 

Re  Van  Sandau,  1154. 

Revis  v.  Smith,  1094,  1095. 

Rex  v.  Abingdon,  49.  85,  121. 

Rex  v.  Alder  ton,  1711. 

Rex  v.  Alexander,  125. 

Rex  v.  Almon,  114,  126. 

Rex  v.  Amphlett,  103. 

Rex  v.  Aylett,  1649,  1682. 

Rex  v.  Baillie,  1198,  1203. 

Rex  v.  Baxter,  132. 

Rex  v.  Bayley,  1201. 

Rex  v.  Bear,  113,  1621. 

Rex  v.  Berry,  1811. 

Rex  v.  Brereton,  1600,  1638. 

Rex  v.  Brown,  137. 

Rex  v.  Burdett,  93,  111,  114, 1432,1938. 

Rex  v.  Burke,  60. 

Rex?/.  Carlile,  1137. 

Rex  v.  Cator,  1933. 

Rex  v.  Clement,  1154. 

Rex  v.  Cooper,  113. 

Rex  v.  Creevey,  684,  1083. 

Rex  v.  Dean  of  St.  Asaph,  1432. 

Rex  v.  Dodd,  126. 


TABLE  OF  CASES. 


XXXl 


Rex  v.  Donnison,  1922. 

Rex  v.  Drake,  113. 

Rex  v.  Edgar,  139. 

Rex  v.  Enes,  1204. 

Rex  v.  Fisher,  126. 

Rex  v.  Fleet,  1154. 

Rex  v.  Foster,  495. 

Rex  v.  Gilhoin,  1154. 

Rex  v.  Girdwood,  111,  1894. 

Rex  v.  Godfrey,  708. 

Rex  v.  Greepe,  1646. 

Rex  v.  Griffin,  132. 

Rex  v.  Gutch,  125. 

Rex  v.  Hall,  1939. 

Rex  v.  Hart,  1154,  1165,  1921. 

Rex  v.  Harvey,  75. 

Rex  v.  Hedges,  476. 

Rex  v.  Holt,  1013. 

Rex  v.  Home,  132,  146,  1645. 

Rex  v.  Hunt,  1921. 

Rex  v.  Hurt,  138. 

Rex  v.  Jenneaur,  1221. 

Rex  v.  Johnson,  111,  1894. 

Rex  v.  Kinnersley,  683. 

Rex  v.  Lambert,  164,  1387. 

Rex  v.  Lee,  1154,  1156. 

Rex  v.  Lord  Abinger,  1083. 

Rex  v.  Marsden,  1582. 

Rex  v.  Matthews,  1680. 

Rex  v.  May,  1624. 

Rex  v.  Middleton,  111. 

Rex  v.  Miller,  1432. 

Rex  v.  Moore,  53. 

Rex  v.  Osborne,  132. 

Rex  v.  Paine,  38,  113. 

Rex  v.  Pearce,  1910,  1924,  1928. 

Rex  v.  Powell,  1619. 

Rex  v.  Roberts,  1033,  1308. 

Rex  v.  Rosenstein,  114. 

Rex  v.  Skinner,  1113. 

Rex  v.  Sutton,  1284 

Rex  v.  Taylor,  38. 

Rex  v.  Topham,  1920. 

Rex  v.  Tutchin,  1309. 

Rex  v.  Watson,  111,  1154,  1894,  1930. 

Rex  v.  Webster,  38. 

Rex  v.  Wegener,  95. 

Rex  v.  Williams,  113,  1894. 

Rex  v.  Woodfall,  138,   1413,  1432,  2098. 

Rex  v.  Wright,  1083,  1142, 

Re  Yates,  1154. 

Reynell  v.  Saekfield,  432. 

Reynolds  v.  Tucker,  2069,  2083, 

Rhodes  v.  James,  1957. 

Rice  v.  Cottrell,  1903,  1976. 

Rice  v.  Pidgeon,  954. 

Rice  v.  Simmons.  14. 

Rice  v.  Withers,  1898,  2078. 


Rich  v.  Holt,  556,  862,  1056. 
Richards  v.  Boulton,  2016. 
Richards  v.  Cohen,  1497. 
Richards  v.  Richards,  2073. 
Richardson  v.  Allen,  362,  608. 
Richardson  v.  Roberts,  531,  1903,  2007 

2036. 
Richmond  v.  Dayton,  1154. 
Rickett  v.  Stanley,  521,  576,  1043. 
Ridley  v.  Perry,  1044,  2046. 
Rigby  v.  Heron,  175,  1528. 
Riggs  v.  Denniston,  651,   806,  833,  932 

1058,  1065,  1078,  1760,  1767,  1800. 
Riley  v.  Nugent,  1481. 
Rineheart  v.  Potts,  492. 
Ring  v.  Wheeler,  1102,  1103. 
Roace  v.  Garvan,  1454. 
Robbins  v.  Treadway,  895. 
Roberts  v.  Brown,  1144. 
Roberts  v.  Camden,  134,   160,  168,  344, 

477,  1716,1961,  1962. 
Roberts  v.  Champlin,  512. 
Robertson  v.  Lea,  258,  482. 
Robertson  v.  McDougall,  691,  1254. 
Robertson  v.  Powell,  517. 
Robertson  v.  Wylde,  2003. 
Robmet  v.  Ruby,  1255,  1834. 
Robins  v.  Hildredon,  241,  415. 
Robinson  v.  Drummond.  132,  2007. 
Robinson  v.  Harvey,  1024. 
Robinson  v.  Jermyn,  704. 
Robinson  v.  Keyser,  141,  261, 1529. 
Robinson  v.  Marchant,  734,  1523,  1717, 

1732. 
Robinson  v.  May,  1183,  1203, 1445, 1962. 
Robinson  v.  Miller,  419. 
Robinson  v.  Wallis,  1841. 
Robson  v.  Blackman,  1353. 
Rochester  White  Lead  Co.,  v.  The  City 

of  Rochester,  1115,  1116,  1332. 
Rockwell  v.  Brown,  1294. 
Rockweller  v.  Brown,  1374. 
Rodeburgh  v.  Hollingsworth,  516,  1643, 

1713,  1954. 
Roe  v.  Birkenhead  Railway  Co.,  1333. 
Roella  v.  Follow,  482. 
Rogers  v.  Clifton,  1270, 1963. 
Rogers  v.  Munns  1490. 
Romayne  v.  Duanes,  1958,  2097. 
Root  v.  King,  18,  84,  85,  88,  398,  931, 

1031,  1279,  1297,  1553,  1481,  1492, 

1961,  1983,  2042. 
Root  v.  Lowndes,  80,  1290,  1988. 
Root  v.  Woodruff,  1800. 
Rose  v.  Groves,  954. 
Rosewell's  Case,  1699. 
Ross  v.  Pines,  84. 
Ross  v.  Ross,  1481, 


XXX11 


TABLE  OF  CASES. 


Ross  v.  Rouse,  503,  512,  514. 

Row  v.  Clargis,  142. 

Rowcliffe  v.  Edmonds,  169,469. 

Rowe  v.  Roach,  1616,  1770. 

Ruckman  v.  Cowell,  84. 

Rue  v.  Mitchell,  482. 

Rumsey  v.  Webb,  1031. 

Rundell  v.  Butler,  477,  1480,  1486,1986. 

Runkle  v.  Meyers,  1025. 

Rush  v.  Cavenaugh,  806,  824,  1396. 

Russell  v.  Corne,  1520. 

Russell  v.  Ligon,  669. 

Russell  v.  Wilson,  358,  611. 

Ruth  v.  Kutz,  1469. 

Rutherford  v.  Evans,  1387,  1815,  1953. 

Ryalls  v.  Leader,  1127, 1130,  1139, 1141, 

1158. 
Ryan  v.  Madden,  1519. 
Ryckman  v.  Delavan,  132,  815. 
Ryckman  v.  Parkins,  1431. 
Ryder  v.  Burke,  1353. 


s 


Safford  v.  The  People,  20. 

Safford  v.  Wyckoff,  67,  84. 

St.  John  v.  St.  John's  Church,  1526. 

St.  Martin  v.  Desnoyer,  1408,  1481. 

Sale  v.  Marsh,  437. 

Salenger  v.  Lusk,  1740. 

Salter  v.  Brown,  600,  958. 

Sample  v.  Wynn,  1958. 

Samuel  v.  Bond,  1031,  1743. 

Sanders  v.  Johnson,  1481,  2042,  2071. 

Sanders  v.  Rollinson,  1092,  1914. 

Sanderson  v.  Hubbard,  1567, 1578  ,1580. 

Sanderson  v.  Rnddes,  741. 

Sands  v.  Robison,  1092,  1114. 

Sandwell  v.  Sand  well,  1900. 

Sandford  v.  Bennett,   851,   1013,    1161, 

1304,  1374,  1504. 
Sanford  v.  Gaddis,  478,  503,  1066,  1569, 

1577,  1618, 1782,  1785,   1810,  1811, 

1812,  1814,  1869. 
Sargent  v.  Helmbold,  1345. 

Sargent  v.  1481. 

Saunders  v.  Bate,  1889. 

Saunders  v.    Mills,     1079,    1142,    1144, 

2099. 
Saunderson  v.  Jackson,  3. 
Saus  v.  Joerris,  1030. 
Savage  v.  Robery,  1711. 
Saville  v.  Jardine,  594,  1497. 
Saville  v.  Sweeney,  1513. 
Sawyer  v.  Eifert,  2042,  2046,  2049. 
Sawyer  v.  Hopkins,  1378,  1549,  1982. 
Sayles  v.  Wooden,  1755. 


Sayren.  Jewett,  1469,  1582,  1653. 
Sayre  v.  Sayre,  2049. 
Scanlan  v.  Cowley,  67. 
Schaus  v.  Putscher,  1347. 
Scheckell  v.  Jackson,  1303,  2097. 
Schenck   v.   Schenck,    96,    1919,     1937, 

1971,  1975. 
Schewer  v.  Klein,  1369. 
Schock  v.  McChesney,  1089,  1992. 
Schwartz  v.  Thomas,  1 905. 
Scobett  ».  Lee,  326. 
Scott  v.  Cook,  1475. 
Scott  v.  Hallock,  1739. 
Scott  v.  HiUiers,  369. 
Scott    v.    McKinnish,  517,   1031,    1812, 
1813,  1840,  1973,  1986,    1997,  2042, 
2062,  2071,  2077. 
Scott  v.  Montsinger,  1995. 

Scott  v.  Peebles,  1024,  1957. 

Scott  v.  Renforth,  1814. 

Scott  v.  Seymour,  111. 

Scovel  v.  Kingsley,  110. 

Seaton  v.  Cordray,  365. 

Secor  v.  Harris,  855,  879. 

Seely  v.  Blair,  1279,  2024. 

Selby  v.  Carryer,  413,  423. 

Self  v.  Garner,  1047,  1880. 

Sell  v.  Facy,  950. 

Sellars  v.  Killew,  716. 

Sellars  v.  Tell,  1674. 

Sellers  v.  Killen,  1819. 

Sempsey  v.  Levy,  806,  1668. 

Seneca  Co.  Bank  v.  Lamb,  722. 

Seniors.  Medland,  1174. 

Senter  v.  Carr,  2055. 

Sergart  v.  Carter,  144. 

Setterman  v.  Ritz,  1629. 

Seven  Bishops,  Case  of,  111,  1933,  1938. 

Severance  v.  Hilton,  1957. 

Sewell  v.  Catlin,  783,  798,  937,  1252. 

Sexton  v.  Brock,  1966. 

Sexton  v.  Todd,  516,  1024. 

Seycroft  v.  Dunker,  783,  801. 

Seymour  v.  Butterworth,  1322, 

Seymour  v.  Morrill,  2042. 

Seymour  v.  Wilson,  66. 

Schackell  v.  Rosier,  1526. 

Shafer  v.  Kintzer,  1469. 

Shaffer  v.  Kintzee,  332,  482. 

Shaftsbury's  Case,  1353. 

Shalmer  v.  Foster,  1697. 

Shank  v.  Case,  2007. 

Sharp  i).  Mayor  of  New  York,  1332. 

Sharp  v.  Scoggin,  20. 

Sharp  v.  Stephenson,   1043,  1778,  1826, 
2036. 

Sharp  v  Wilhite,  1567. 

Shattuck  v.  Allen,  1181,  1432, 1435. 

Shaw  v.  Thompson,  495. 


TABLE  OF   CASES. 


XXX111 


Shaw  v.  Wakemau,  837. 

Shay  v.  Tuolumne  Water  Co.,  1455. 

Sheahan  v.    Collins,    1031,  2023,    2042, 

2070. 
Shecut  v.  McDowel,  141,  150. 
Sheddon  v.  Patrick,  161. 
Sheely  v.  Biggs,  482. 
Sheffil  v.  Van  Deusen,  104. 
Sheldon  v.  Carpenter,  1293. 
Shelfer  v.  Gooding,  1104. 
Shelford  v.  Gooding,  1091. 
Shellenbarger  v.  Norris,  1570, 1572. 
Shelton**.  Nance,  669,  679,  1163. 
Shephard  v.  Merrill,   1031,   1040,    1780, 

1791. 
Shepherd  v.  Bliss,  1873. 
Shepherd  v.  Wakeman,  528,  949. 
Sherwin  v.  Swindall,  73. 
Sherwood  v.  Chase,  167,  484,  492. 
Shields  v.  Cunningham,  516. 
Shimer  v.  Bronnenburg,  1567,  1583. 
Shinlob  v.  Ammerman,  482. 
Shipley  v.  Todhunter,   169,    652,    1210, 

1894. 
Shipman  v.  Burrows,    943,   1717,    1720, 

1957. 
Shipp  v  McCraw,  305,  335,  350. 
Shire  v.  King,  826,  841. 
Shoe    &,   Leather   Bank   v.   Thompson, 

1338. 
Shore?'.  Smith,  1730. 
ShorMey   v.    Miller,    1975,    2007,    2010, 

2026. 
Shoulty  v.  Miller,  2024,  2069. 
Showell  v.  Haman,  347. 
Shultz  v.  Chambers,  1658. 
Shute  v.  Barrett,  1481. 
Sibley  v.  Tomlins,  745,  761,  765. 
Sibley  v.  Tompkins,  760. 
Sibthorpe's  Case,  470. 
Sidgreaves  v.  Myatt,  516,  1031. 
Sidman  v.  Mayo,  374,  1638. 
Simmons  v.  Morse,  1409. 
Simpson  v.  Barlow,  804. 
Simpson  v.  Hardie,  1497. 
Simpson  v.  Robinson,  1157,  1999,  2007. 
Simpson  v.  Wiley,  1908. 
Sims  v.  Kinder,  1265,  2018. 
Sinclair  v.  Fitch,  1738. 
Skelton  v.  Seward,  1497. 
Skinner  v.  Bronnenburg,  1497. 
Skinner  v.  Grant,  761,  1024,  1037,  1059, 

1812,  2052. 
Skinner  v.  Powers,  1061,  1079,  2071. 
Skinner  *'.  Shoppee,  1497. 
Skinner  v.  White,  305,  614. 
Skutt  v.  Hawkins,  1582. 
Slator  v.  Slator,  1367. 


Sloan  v.  Petrie,  2007. 

Slocum  v.  Kuykendall,  1809. 

Slowman  v.  Dutton,  169,  454. 

Sluder  v.  Wilson,  482. 

Smale  v.  Hammond,  326,  348,  482. 

Smalley  v.  Anderson,  516, 521,  586, 1013. 

Smalley  v.  Stark,  132,  1947. 

Smart  v.  Blanchard,  99,  132,  1079,  1814, 

1942. 
Smayles  v.  Smith,  752,  846. 
Smiley  v.  McDougal,  1836. 
Smith  v.  Andrews,  839. 
Smith  v.  Ashley,  85,  122. 
Smith  v.  Buckhecker,  1045,  1079. 
Smith  v.  Bull,  111. 
Smith  v.  Carey,  1657, 1672. 
Smith's  Case,  636,  638. 
Smith  v.  Cleveland,  1469. 
Smith  v.  Collins,  351. 
Smith  v.  Cooker,  1524,  1705. 
Smith  v.  Gafford,  150,  358,  1528,  1688 
Smith  v.  Hamilton,  1529. 
Smi*h  v.  Harrison,  1035,  1304. 
Smith  c.  Hixon,  1512. 
Smith  v.  Hobson,  1517. 
Smith  v.  Hodgeskins,  544,  1183. 
Smith  ,'.  Hollister,  1709,  1807,  1808. 
Smith  r.  Joyce,  727. 
Smith  v.  Kerr,  1183,  1287,  1490. 
Smith  c.  Knowelden,  1888. 
Smith  ;>.  Lewis,  1095. 
Smith  v.  Lovelace,  1969. 
Smith  v,  Matthews,  1203. 
Smith  v.  Mawhood,  722. 
Smith  v.  Miles,  143,  1404,  1942. 
Smith  v.  Minor,  528. 
Smith  v.  Parker,  K)36,  1039. 
Smith  v.  Richardson,  1034,  2070. 
Smith  v.  Scott,  1142,  1157,  2020. 
Smith  v.  Silence,  516,  517. 
Smith  v.  Smith,  311,  320,  332,  333,  513, 

1031,  1746,  1884,  2018. 
Smith  v.  Spooner,  130,  982,  983. 
Smith  v.  Stewart,  272,  336,  341,  1024. 
Smith  v.  Taylor,  1821. 
Smith  v.  Thomas,  1745. 
Smith  v.  Tracy,  722. 
Smith  v.  Ward,  259. 
Smith  v.  Wilcox,  722. 
Smith  v.  Williams,  1529. 
Smith  v.  Wood,  116. 
Smith  v.  Wyman,  1039,  1992,  2007. 
Smith  v.  Youmans,  647,  1164,  1962. 
Snag  v.  Grey,  850. 
Snag  v.  Gee,  144. 
Sneade  v.  Badley,  991,  993. 
Snell  v.  Snow,  132,  150,  229,  1690,  1944. 
Snell  v.  Webbliug,  137. 


XXXI V 


TABLE  OF  CASES. 


Snow  v.  Judson,  980. 
Snow  v.  Witcher,  516,  1039,  1070,  1760. 
Snyder    y.    Andrews,    102,   201,    1031, 
1404,  1429,  1430,  1436,  1438,   1779. 
Soane  y.  Knight,  1317. 
Solomon  v.  Lawson,  132,  1622,  1658. 
Solomon  v.  Medex,  735,  1851. 
Soltan  v.  Deheld,  1. 
Somers  v.  Holt,  1500. 
Somers  v.  House,  134,  150,  166. 
Somerstaile's  Case,  601. 
Somerville  v.  Hawkins,  1010, 1268, 1443, 

1447,  1962, 
South  y.  The  State  of  Maryland,  1113. 
Southall  v.  Dawson,  950. 
Southaui  y.  Allen,  714,  783. 
Southee  y.  Denny,  169,  747,  859,  877. 
Southwick  v.  Stevens,  684,  1481,  1917, 

1950,  2084. 
Spall  y.  Massey,  1560. 
Sparkham  v.  Pye,  476. 
Sparrow  y.  Maynard,  1570. 
Speaker  ;■.  McKenzie,  616. 
Spencer  y.  Ameston,  1202. 
Spencer  v.  McMasters,  516,  1480,  1519, 

1639,  2007. 
Spencer   v.   Southwick,    133,    134,   147, 

1039,  1741. 
Sperry  y.  Frecking,  1470. 
Spoouer,  re,  1154. 

Springstein  y.  Field,  1957,  2042,  1070. 
Spruil  y.  Cooper,  2031. 
Squier  v.  Gould,  1717. 

Squire  v.  Johns,  788. 
Squires  v.  Whisken,  1376. 

Stafford  y.  Green,  354,  1469. 

Stafford  y.  Grier,  482. 

Stallings  y.   Newman,    144,    1232,  1548, 
2076. 

Stamp  y.  White,  354. 

Stanfield  v.  Boyer,  522,  1805. 

Stanhope  y.  Bl'ith,  160,  482. 

Stanley  v.  Boswel,  838. 

Stanley  v.  Osbaston,  788. 

Stanley  y.  Webb,  1149,  1156, 1798,2068. 

Stannard  y.  Harper,  1811. 

Stanton  v.  Andrews,  1188. 

Stanton  v.  Smith,  786. 

Starr  v.  Gardner,  359,  760,  885. 

Starr  v.  Harrington,  1046,  1787,  2007. 

State  y.  Avery,  662. 

State  y.  Burnham,  84,  1076. 

State  v.  Burroughs,  304. 

State  y.  Chace,  138. 

State  v.  Croteau,  1432, 

State  y.  Davis,  1920. 

State  y.  Farley,  18,  656. 

State  v.   Henderson,   1552,   1644,  1652, 
1658,  1698. 


State  y.  Houeyman,  71. 

State   y.  Jeandall,   18,  132,  1432.  1827, 

1915,  1981. 
State  v.  Lewis,  71. 
State  v.  Neese,  1528. 
State  v.  Powers,  1858. 
Staverton  v.  Relfe,  426,  479. 
Steadman  y.  Arden,  1365. 
Stearns  y.  Cox,  1984. 
Stebbing  v.  Warner,  538. 
Steele  v.  Phillips,  1779. 
Steele  y.  Southwick.  18, 85,  132,  219, 683. 
Stees  v.  Kemble,  137,  210,  1876,  2068. 
Steever  v.  Beehler,  2079. 
Steinman  v.  Clark,  1763. 
Steinman   v.    McWilliams,    1576,    1959, 

2024,  2031  2042,  2045,  2050. 
Stephens  v.  Corben,  256. 
Sterling  v.  Sberwood.  1800. 
Sterry  v.  Foreman,  1868. 
Stetson  v.  Jackson,  2043, 
Stevens  v.  Ask,  143. 
Stevens  v.  Handlay,  141,  1635. 
Stevens  v.  Hartley,  972. 
Stevens  v.  Midland   Counties   Railway, 

1333. 
Stevenson  v.  Hayden,  582,  594. 
Steventon  v.  Higgins,  542. 
Stewart  y.  Howe,  354. 
Stewart  />.  Layton,  109. 
Stewart  v.  Nugent,  1358. 
Stewart  v.  Wilkinson,  2098. 
Stieber  v.  Wensel,  516,  578. 
Stiles  v.  Comstock,  1048,  2044. 
Stiles  v.  Nokes,  1036,  1132,  1147,  1784. 

Still  y.  Finch,  419. 

Stillwell    v     Barter,    681,    1037,    1051, 
1052. 

Stitch  y.  Wisedom,  394. 

Stockdale  v.  Hansard,  1084,  1373. 

Stockdale  y.  Onwhyn,  1521. 

Stockdale  v.  Tat  te.  1406. 

Stocken  v.  Collen,  1896. 

Stocking  y.  Clement,  7'»7. 

Stokes  v.  Stuckey,  464,  465. 

Stone  y.  Clarke,  144,  145,513,894,1548, 
1567. 

Stone  v.  Cooper,  235, 1537. 

Stone  v.  Smalcombe,  438,  543. 

Stone  v.  Varney,  2042,  2043. 

Storey  y.  Challands,  1223.  1724. 

Storrer  y.  Audley,  371. 

Stout  v.  Wood,  111,  350,  353. 

Stow  y,  Converse,  377,  682,   1045,  1393, 
1957.  1970,  2014,  2060,  2074. 

Strachey's  Case,  1541. 

Strang  y.  Holmes,  1287. 

Strang  v.  Whitehead,  1717. 

Strauss  v.  Francis,  1322. 


TABLE  OF  CASES. 


XXXV 


Strauss  v.  Schwarzwaelden,  1346. 

Street  v.  Bushnell,  187*7. 

Streety  v.  Wood,  1196. 

Strieber,  v.  Wensel,  1553. 

Strode  v.  Holmes,  921. 

Strong,  re,  1154. 

Strong  v.  Forman,  943,  1721. 

Strong  v.  Kean,  1452. 

Stroop  v.  Swartz,  1512. 

Stuart «.  Lovell,  61,  1312. 

Stucker  v.  Davis,  1658. 

Sturgenegger  v.  Taylor,  605. 

Stutley  v.  Pulhead,  906. 

Subley  v.  Mott,  1517. 

Suiman  y.  Shilletto,  362. 

Sullivan  v.  Holker,  1469. 

Sullivan  v.  Lenihan,  1397. 

Sullivan  v.  White,  1618. 

Sumner  v.  Buel,  132. 

Sumner  v.  Utley,  879. 

Sutton  v.  Smith,  116,  2019. 

Suydam  v.  Moffat,  1094,  1983. 

Swails  v.  Butcher,  2007,  2024. 

Swan  v.  Clelland,  1482. 

Swan  v.  Uary,  1061. 

Swan  v.  Tappan,  130,  132,  980,  1005. 

Sweetapple  v.  Jesse,  170,  1653. 

Swift  v.  Dickerman,   1463,   1981,   1983, 

2018,  2048,  2055,  2062,  2083. 
Swinney  v.  Nave,  1608. 
Swithin  v.  Vincent,  1517,  1525. 
Sym  v.  Hockley,  641. 
Symmons  v.  Blake,  1974,  1989,  1992. 
Syninis  v.  Blake,  1488. 
Symonds  v.  Carter,  530,  571. 


T 


Tabart  v.  Tipper,  85,  1308,  1320,  1641, 

1815,  1856. 
Tabbe  v.  Matthews,  158. 
Taft  v.  Howard,  1650. 
Talbutt  v.  Clark,  1013,  2097. 
Tallenl  v.  Morton,  1353. 
Tamlin  v.  Hamlin,  604. 
Taply  v.  Wainwright  292. 
Tapling»>.  Ward,  1360 
Tappan  v.  Wilson,  701,  1307. 
Tarpley  v.  Blabey,  1934. 
Tasburgh  v.  Day,  992. 
Tassan  v.  Rogers,  954. 
Tate  v.  Bumphrey,  1993, 
Taverner  v.  Little,  1527. 
Taylor  v.  Carpenter,  1466. 


Taylor  v.  Carr,  1800,  1802. 

Taylor  v.  Casey,  206,  444. 

Taylor  v.  Church,  88,  680,  735,  736,  738, 

783,  1248,  1466,  1523,  2076. 
Taylor  v.  Crowland,  722. 
Taylor   v.  Hawkins,   1005,    1256,    1267 

1443,  1447. 
Taylor  v.  Howe,  914,  1595. 
Taylor  v.  Kneeland,  86,    132,   304,   926, 

1644,1658,  1700,  1863. 
Taylor  v.  Moran,  1618,  1807,  1809,  1984. 
Taylor  v.  Perkins,  632,  634. 
Taylor  v.  Richardson,  1031. 
Taylor  v.  Robinson,  1031,  1434. 
Taylor  v.  Starkey,  829,  847. 
Taylor  v.  State  of  Georgia,  1386. 
Taylor  v.  Sturgingger,  108. 
Taylor  v.  Tally,  572,  950. 
Taylor  v.  The  State,  1586. 
Teagle  v.  Deboy,  1031,  1351,  1390,  1481, 

1995,  2061,  2062. 
Teague  v.  Williams,  1825,  1901. 
Teall  v.  Fe^ton,  1114. 
Teesdale  v.  Clement,  1563. 
Tempest  v.  Champers,  382,  1860. 
Tenney  v.  Clement,  144,  323, 1548,  1667. 
Terry  v.  Bright,  516,  1618. 
Terry  v.  Hooper,  715,  811. 
Terwilliger  v.  WTands,  33,  936,  940,  943, 

946,  965,  972,  977,   1463,  1981. 
The  People  v.  Compton,  1154. 
The  People  v.  Cross  well,  18, 85, 1300, 1432. 
The  People  v.  Few,  1154. 
The  People  v.  Freer,  84,  1154. 
The  People  v.  Jerome,  705. 
The  People  v.  Rathbun,  14. 
The  People  v.  Saxton,  66. 
The  People  v.  Sturtevant,  1154. 

The  People  v.  Townsend,  1284. 

Thimmelthorp's  Case,  624. 

The  State,  see  State. 

Thirman«.  Mathews,  134,  319,  543. 

Thomas  v.  Axworth,  438. 

Thomas'  Case,  914. 

Thomas  v.  Churton,  1114. 

Thomas   v.   Crosswell,  930,   1140,   1147, 
1375,  1420,  1646,  1713,  1986. 

Thomas  v.  Dunaway,  2007,  2018,  2080. 

Thomas  v.  Hughes,  889. 

Thomas  v.  Jackson,  806,  810. 

Thomas  v.  Rumsay.  120,  1375. 

Thompson  v.  Barkley,  1637. 

Thompson  v.  Bernard,  141,  262. 

Thompson  v.  Bowers,  1031,  1076,  1761, 
1984,  2062,  2097. 

Thompson  v.  Grimes,  1404,  1424. 

Thompson  v.  Knott,  476. 

Thompson  v.  Shackell,  1310,  1316. 


XXX  VI 


TABLE  OF  CASES. 


Thompson  v.  Twenge,  794. 

Thorley's  Case,  14,  16. 

Thorley  v.  Kerry,  670. 

Thorn  v.  Blanchard,  1091,  1093,  1191. 

Thorn  v.  Moser,  84,  116,  1255. 

Thornton  v.  Stephen,  13  87. 

Thrall  v.  Smiley,  1766,  1823. 

Throgmorton  v.  Davis,  1973,  1987. 

Tibbetts  v.  Gooding,  179,  354,  431. 

Tibbs  v.  Brown,  1510,  1957. 

Tifft  v.  Tifft,  124. 

Tighe  v.  Cooper,  1074,  1777. 

Tilk  v.  Parsons,  995,  1727. 

Tilley  v.  Hudson  River  R.  R.  Co.,  33. 

Tillotson  v.  Cheetham,  1368,  1372,  1481, 

1969,  2110. 
Tilson  v.  Clark,  1761,  1785. 
Timmerson  v.  Morrison,  722. 
Tindall  v.  Moore,  1534. 
Titus  v.  Follett,  732,  1582,  1586. 
Tobias  v.  Harland,  130,  979,  1001,  1724, 

1884. 
Todd  v.  Bedford,  1520. 
Todd  v.  Hastings,  751. 
Todd  v.  Hawkins,  1232. 
Todd  v.  Rough,  304,  310. 
Tomlinson  v.  Brittlebank,  169,  231,  470, 

761,  1426. 
Tompkins  v.  Visener,  132. 
Tonnemanw.  DeWitt,  1280. 
Toogood  v.  Spyring,  1005,  1231,  1256, 

1445,  1962. 
Torbitt  v  Clase,  316,  561. 
Torrance  v.  Hurst,  18. 
Torrey  v.  Field,  1037,  1045,  1076,  1090, 

1742,  1768. 
Townsend  v.  Barker,  603,  921. 
Tozerv.  Mashford,  142,  381,  1418. 
Trabue  v.  Mayo,  141,   1024,  1478,  1961. 
Traphagen  v.  Carpenter,  2079,  2096. 

Treanor  v.  Donahue,  1481. 

Treat    v.    Browning,    230,    1013,    1021, 
1031,  1838,  2097. 

Tremain  v.  Cohoes  Co.,  84. 

Tremaine  v.  Parker,  1266. 

Trenton  Ins.  Co.  v.  Perrine,  954,   1334, 
1336,  1725. 

Tripp  v.  Thomas,  1371. 

Trottman  v.  Dunn,  1100. 

True  v.  Plumley,  269,  1366,  1450,  1458, 
1982. 

Truman  v.  Taylor,  134. 

Trumbull  v.    Gibbons,    96,     103,     111, 
1481. 

Trustees  <fec.  v.  Utica,  <fec,  1. 

Tuam  v.  Roberson,  890. 

Turnbull  v.  Bird,  1322. 

Turner,  ex  parte,  1154. 

Turner  v.  Horton,  1497. 


Turner  v.  Merryweather,  132,  270,  659, 

1708. 
Turner  v.  Ogden,  331. 
Turner  v.  l'ullman,  1142. 
Turner  v.  Sullivan,  1145. 
Turrill  v.  Dolloway,  1404. 
Tuson  v.  Evans,  1214,  1407,  2006. 
Tut  v.  Kerton,  602. 
Tutchin's  Case,  1679. 
Tuthill  v.  Milton,  757,  1554,  1555. 
Tattle  v.  Bishop,  134,  170,  180. 
Tutty  v.  Ale  win,  854. 
Tyler  v.  Tillotson,  132,  1582. 


u 

Underbill  v.  Taylor,  2081. 
Underbill  v.  Welton,  517,  526,  965. 
Underwood  v.  Parker,  1031. 
Union  Turnpike  Co.  v.  Jenkins,  1469. 
Updegrove  v.  Zimmerman,  1031,  2007. 
Upsheer  v.  Betts,  1053. 
Upton  v.  Penfold,  255. 
United  States  v.  Cornell,  75. 
United  States  y.  Morris,  1432. 
Usher  v.   Severance,   1144,  1404,  1439, 
1961,  2088. 


V 

Vail  v.  Owen,  1116. 

Vanada's  Heirs  v.  Hopkins,  142. 

Van  Akin  v.  Caler,  1411,  1440. 

Van  Ankin  v.  Westfall,    335,  338,  353, 

1031. 
Van  Benschoten  v.  Yaple,    1792,  1793, 

1796. 
Van  Cleef  v.  Lawrence,  102. 
Vanderlip  v.  Roe,  138,  203,  1412. 
Vanderslice  v.  Newton,  937. 
Van  Derveer   v.   Sutphin,    1036,   1037, 

1743,  1791,  1984,  2018,  2068,  2070. 
Vanderzee   v.    McGregor,    1092,    1190, 

1203. 
Van  Hook,  re,  1154. 
Van  Keurin  v.  Griffis,  1866. 
Van  Ness  v.  Hamilton,  304,  1759,  1767, 

1769. 
Van  Rensselaer  v.  Dole,  354,  441. 
Van  Rensselaer  v.  Jones,  23. 
Van  Sandau,  re,  1154. 
Van  Slyke  v.  Carpenter,  1553. 
Van  Spike  v.  Cleyson,  1220. 


TABLE  OF  CASES. 


XXXVll 


Vansteenburgh  v.  Kortz,  515. 

Van  Tassel  v.  Capron,  760,  761,  762. 

Van  Vechten  v.  Hopkins,  99,  129,  132, 
150,  1403,  1420,  1427,  1551,  1644, 
1646,  1650,  1698,  1699,  1702. 

Van  Wyck  v.  Aspinwall,  1197,  1203. 

Van  Wyck  v.  Guthrie,  1197,  1764. 

Vaughan  v.  Havens,  482,  1644. 

Vansse  v.  Lee,  1099. 

Venard  v.  Waton,  432. 

Vessey  v.  Pike,  292,  1036,  2065. 

Vicars  v.  Wilcocks,  57,  952,  968. 

Vick  v.  Whitfield,  2042,  2046. 

Viele  v.  Gray,  48,  49,  53,  68,  84,  88,  121, 
669,  1173,  1613. 

Villers  v.  Monsley,  633,  676. 

Vincent  v.  Dixon,  1972. 

Viniero  ?;.  Serell,  2076. 

Vivian's  Case,  396,  802. 


w 


Wachter  v.  Quenzer,   1039,   1400,   1761 

1774,  1785,  1941. 
Waddington  v.  Cousins,  1933. 
Waganian  v.  Byers,  333,  360,  1431,  1871. 
Waggonor  v.  Richmond,  441. 
Wagner  v.  Holbrunner,  1031,  2060. 
Wagstaff  v.  Ashton,  1031,  2062. 
Waiited  v.  Holman,  1599. 
Waithman  v.  Weaver,  1013. 
Wakefield  v.  Smithwick,  1214,  1224. 
Wakley  v.  Cooke,  1295. 
Wakley  v.  Healey,   132,  160,   169,  171, 

659,  861,  1584,  1710,  1956. 
Waklev  v.  Johnson,  1934,  2080,  2106. 
Walcot  v.  Hind,  140. 
Walden  (Sir  L.)  v.  Mitchell,  142,  333, 758. 
Wales  v.  Norton,  289. 
Walker  v.  Brogden,  1327,  1748. 
Walker  v.  Winn,  677,  2090. 
Wall  v.  Hoskins,  305,  350. 
Wallace  v.  Young,  428,  430. 
Wallis  v.  Mease,  247. 
Walmsley  v.  Russell,  326. 
Walrath  v.  Nellis,  134,  477,  482. 
Walsh  v.  The  State,  1618. 
Walters  v.  Beaver,  188. 
Walters  v.  Mace,  1855,  1872. 
Walters?;.  Nettleton,  1502. 
Walters  v.  Smoot,  2037. 
Walton  v.  Singleton,  169,  522,  571. 
Ward  v.  Clark,  354,  482,  1624. 
Ward  v.  Smith,  95,  1220. 
Ward  v.  Thornc  111. 


Ward  v.  Weeks,  973. 

Warden  v.  Bailey,  1118. 

Ware  v.  Cartledge,  1592. 

Ware  v.  Clowney,  822. 

Ware  v.  Curtledge,  1979. 

Ware  v.  Johnson,  15,  39. 

Warman  v.  Hine,  1422. 

Warne  v.  Chadwell,  1995. 

Warner  v.  Paine,  1004,  1094,  1099. 

Warren  v.  Norman,  628. 

Warren  v.  Warren,  1209,  1896. 

Washburn  v.  Cooke,  80,  1243,  1245. 

Wason  v.  Walter,  1087. 

Waterhouse  v.  Hatfield,  1350. 

Waters  v.  Guthrie,  1886. 

Waters  v.  Jones,  181,  428,  430. 

Watson  v.  Bennett,  1332. 

Watson  v.  Buck,  1013. 

Watson  v.  Churchill,  2053. 

Watson  v.  Hampton,  354,  482,  1655. 

Watson  y.  McCarthy,  630. 

Watson  v.  Moore,  1079, 1994,  2065,  2113. 

Watson  v.  Music,  1624,  1809. 

Watson  v.  Nicholas,  141,  257,  1644,  1671. 

Watson  v.  Reynolds,  982,  983,  993. 

Watson  v.  Trask,  678. 

Watters  v.  Smoot,  1044. 

Watts  v.  Fraser,  113,  1524,  1926    2082 

2084,  2091. 
Watts  v.  Greenleaf,  1655. 
Watts  v.  Greenlee,   106,   359,  516    577 

1847. 
Weatherhead  v.  Armitage,  623,  776. 
Weatherstone  v.  Hawkins,  1002,  1264. 
Weaver  v.  Devendorf,  1116. 
Weaver  v.  Hendrich,  1961,  2018,  2095. 
Weaver  v.  Lloyd,  285,  1037,  1387,  1765. 
Weaver  v.  Ward,  1280. 
Webb  v.  Cecil,  117,  120. 
Webb  v.  Nicholls,  835. 
Webb  v.  Poore,  447. 
Weblin  v.  Meyer,  135,  447. 
Weed  v.  Bibbins,  558,  1646,  1941. 
Weed  v.  Foster,  672. 
Weekerly  v.  Geyer,  75. 
Weir  v.  Hoss,  94,   121,   126,   132,  16 

1650,  1684,  1912. 
Wells  v.  Com.  Mut.  Ins.  Co.,  56. 
Welsh  v.  Eakle,  1404. 
Wenman  v.   Ash,   96,  1002,  1200,  1442, 

1443,  1447. 
West  v.  Smith,  1716. 
Weston  i>.  Dobniet,  1095. 
Weston  v.  Worden,  1885. 
Wetherbee  v.  Marsh,  2070. 
Wetsel  v.  Lennen,  1575. 
Wharton  v.  Brook,  714,  866. 
Wharton  v.  Clover,  866. 


XXXVI 11 


TABLE  OF  CASES. 


Wheatcraft  v.  Mouseley,  1353. 
Wheatley  v.  Wallis,  464,   465. 
Wheeler  v.  Haines,  1694. 
Wheeler  v.  Robb,  1744,  1812. 
Wheeler  v.  Shields,  1013. 
Whitaker  v.  Bradley,  43,  718,  783. 
Whitaker  v.  Carter,   1046,   1163,   1567, 

2039. 
Whitaker  v.  Freeman,  1618,  1744,  2043. 
White  v.  Delavan,  132,  815. 
White  v.  Harwood.  1512. 
White  v.  Merritt,  980. 
White  *>.  Nellis,  47. 
White  v.  Nicolls,   18,  85,  86,  1004,  1008, 

1445,  1615,  2006. 
White  v.  Sayward,  132,  1952, 
Whitehead  v.  Fownes,  867. 
Whiteley  v.  Adams,  1349. 
Whitfield  v.  South  East  R.  R.  Co.,  1341. 
Whiting  v.  Smith,  1624,  1812. 
Whittington  v.  Gladwin,  718,  783,  790. 
Wickham  v.  Baker,  1351,  1368. 
Wicks  v.  Macnamara,  1367. 
Wicks  v.  Shepherd,  951. 
Widrig  v.  Oyer,  303,  529. 
Wilborn  v.  Odell,  1391,  1809,  1817, 1824. 
Wilby  v.  Elston,  364,  518,  933,  2021. 
Wilcox  v.  Edwards,  356. 
Wilcox  v.  Webb,  1618. 
Wiley  v.  Campbell,  342,  1829. 
Williams  v.  Beaumont,  1339. 
Williams  v.  Bickerton,  223. 
Williams  v.  Breedon,  1469. 
Williams  v.  Bryant,  517,  1862. 
Williams  v.  Cooper,  1886. 
Williams  v.  Cowley,  141. 
Williams  v.  Gardiner,  214. 
Williams  v.  Greenwale,  517,  1958. 
Williams  v.  Harrison,  1811,  1975. 
Williams  v.  Hill,  945. 
Williams   v.   Holdridge,   517,  629,  630. 

1513. 
Williams  v.  Karnes,  363,   550,  662,  666. 
Williams   v.    Minor,    1807,   1832,    1992, 

2018,  2036,  2062,  2068. 
Williams  v.  Spears,  1567. 
Williams  v.  Stott,  144,   610,    1672,  1853. 
Willis  v.  Shepherd,  921. 
Willmet  v.  Harmer,  2024,  2030. 
Willymote  v.  Welton,  476. 
Wilmot  v.  McCabe,  1358. 
Wilner  v.  Hold,  444,  446. 
Wilson  v.  Beighler,  1037,  1528,  1743. 
Wilson  v.  Cloud,  512,  513. 
Wilson  v.  Collins,  1114. 
Wilson  v.  Crow,  420. 
Wilson  v.  Goit,  33,  946,  957,  965,  1463, 

1981. 


Wilson  v.  Hamilton,  132. 

Wilson  v.  Harding,  493. 

Wilson  v.  Mayor  of  New  York,  1116. 

Wilson  v.  Mitchell,  1859. 

Wilson  v.  Nations,  1067,  2009. 

Wilson  v.  Natrons,  1813. 

Wilson  v.  Oliphant,  512. 

Wilson  v.  Reed,   1322. 

Wilson  v.  Robbins,  516,  621,  571. 

Wilson  v.  Robinson,  2007,  2013. 

Wilson  v.  Runyon,  516,  777,  1717. 

Wilson  v.  Stephenson,  1221. 

Winter  v.  Donovan,  1392,  1805,  1909. 

Winter  v.  Sum\alt,  590. 

Wireback  v.  Trone,  362. 

Wiseman  v.  Wiseman,  1697. 

Witeher'sCase,  598,  950. 

Witcherv.  Richmond,  1574,  1580. 

Wogan  v.  Somerville,  1821. 

Wolcott  v.  Hull,  2042. 

Wolf  v.  Rodifer,  1811. 

Wolmer  v.  Latimer,  2071. 

Wons1  n  v.  Sayward,  465. 

Wood  v.  Adams,  1871. 

Wood  v.  Brown,  815,  1623,  1634. 

Wood  v.  Gunston,  1106,  1469. 

Wood  v.  Pringle,  1378. 

Wood  v.  Scott,  1567, 1581. 

Woodbeck  v.  Keller,  1785,  2024,  2031. 

Woodburnw.  Mille-,  669,  679,  1927,  2060. 

Woodbury  v.  Sackrider,  161. 

Woodbury  v.  Thompson,  522,  946. 

Woodruff  v.  Richardson,  1079. 

Woodruff  v.  Wooley,  921. 

Woodward  v.  Andrews,  1749. 

Woodward  v.  Cotton,  1339. 

Woodward  v.  Downing,  644,  924. 

WoodwTard  v.  Lander,  1192. 

Woolcott  v.  Goodrich,  265. 

Woolcott  v.  Hall,  1013. 

Woolnoth  v.  Meadows,    134,    168,   268, 

1017. 
Woolsey  v.  Judd,  26. 
Wormuth  v.  Cramer,  1596,  1629,  2062. 
Worth  v.  Butler,  111,  205,  516. 
Wright,  v.  Britton,  1903. 
Wright  v.  Clements,  1619.  1622,  1636. 
Wright  v.  Lindsay,  354,  1744. 
Wright  v.  Moorhouse,  900. 
Wright  v.  Orient  Mut.  Ins.  Co.,  56. 
Wright  v.   Paige,  99,  134,  185,  304,  560, 

1943. 
Wright  v.  Schroeder,  1957,  2049. 
Wright  v.  Wood-ate,   1007,  1216,  1962, 

2006. 
Wyant  v.  Smith,  354,  1800. 
Wvatt  v.  Cocks,  1888. 
W'yatt  v.  Gore,  95,  1209. 


TABLE  OF   CASES. 


XXXIX 


Yardley  v.  Ellis,  419,  827. 

Yardrew  v.  Brook,  1286. 

Yates,  re,  1154. 

Yearly  v.  Ashley,  551. 

Yeates  v.  Reed,  1280,  1961,  2077. 

York's  Case,  71. 

York  v.  Cecil,  419. 

York  v.  Pease,  1110,  1388,  2002. 

Young  v.  Bennett,  2042,  2071. 

Young  v.  McCrae,  938,  979,  980. 


Young  v.  Miller,  302,  310,  352,  658. 

Young  v.  Slemons,  2070. 

Yrisarri  v.  Clement,    725,    1469,    1493, 

1954. 
Yundt  v.  Yundt,  1624. 


z 

Zeig  v.  Ort,  1596,  1624,  1629,  1633. 
Zenobia  v.  Axtell,  1628, 1630, 1633. 


TABLE 


OF  REFERENCES  TO  REPORTS,  WITHOUT  THE  NAME  OF  THE  CASE 

PREFIXED. 


(The  references  are  to  the  numbers  of  the  notes.) 


English  Common  Law  Reports,  75. 
Coke's  Reports,  11,    123,    128,    133, 

137,  147,  407. 
Jenkin's  Century,  136,  991. 
Bulstrode,  15,  137,  1553. 
Lord  Raymond,  18,  137,  409. 
Hobart,  140,  173,  483. 
Carthew,  142. 
Telverton,  147,  556. 
Moor,  123,    126,   147,    1522,    1612, 

1696. 
Strange,  16,  72,  424,  954. 
Siderfin,  2,  571,  641. 
Levins,  5,  166. 
Noy,  40,  1596,  1612. 
Freeman,  40,  815. 
Clayton,  56. 

Rolle,  72,  162,  1547,  1554,  1705. 
Atkyn's,  1154. 

Modern,  114,  121,  797,  1133. 
Het,  869. 
W.  Saunders,  85,  95,    98,    101,  106, 

117,  1082, 1502,  1522,  1525, 1615. 
Wilson,  1033. 
Bridgman,  1079. 
Hutton,  1079. 
Croke,    Carolus,    93,    500,    501,    515, 

1596,  1695,  1696. 
Croke,  Jacobus,  137,  160,  173,  501, 

1554,  1596. 


Croke,  Elizabeth,  97,  173,  308,  1596, 

1696. 
Jones,  166,  544. 
Dalton,  540. 
Aleyn,  173. 
Style,  173,  1590,  1614. 
Owen,  1612. 

Goldsborough,  1596,  1696. 
Lee,  496. 
Keble,  763. 
Salkeld,  166,  396. 
Ventris,  166,  715. 
Leonard,  166. 

Brownlow,  173,  477,  1079,  1522. 
Godbold,  173,  370. 
Hardress,  173. 
Vernon,  1374. 
Barbour,  11. 
Johnson's  Cases,  30. 
Caine's  Reports,  105. 
Burr,  119. 
Metcalf,  119. 
Term  Reports,  82. 
Barnwell  &  Creswell,  72,  75. 
Maule  &  Selwyn,  2. 
Phillip's  Ecclesiastical  Cases,  39. 
Clark  &  Finnelly,  73. 
Sergeant  &  Rawle,  75. 


TABLE 


OF  WORKS   REFERRED   TO,  EXCLUSIVE  OF   THE  REPORTS, 
ARRANGED  GENERALLY  BY  THE  NAME  OF  THE  AUTHOR. 


(The  reference  is  to  the  number  of  the  note.) 

American  Encyclopedia,  18. 

Addison  on  Wrongs,  18. 

Addison  on  Contracts,  1280. 

Austin's  Lectures  on  Jurisprudence,  22,  24,  29,  43,  49,  63,  65,  67,  69,  73,  75, 

81. 
Anthon  Law  Student,  44. 
American  Law  Journal,  20. 
American  Leading  Cases,  304,  431,  655. 
Areopagitica — a  Plea  for  unlicensed  Printing,  1300. 
Burke — Letter  to  his  Son,  2. 

Blackstone's  Commentaries,  2,  6,  16,  24,  40,  72,  148,  1033,  1034. 
Bishop  on  Criminal  Law,  2,  113. 
Bishop  on  Marriage  and  Divorce,  11. 
Bouvier's  Law  Dictionary,  3,  7,  18,  71,  75,  85. 
Bacon's  Abridgement,  4,  14,  39,  121,  126,  354,  501,  1117. 
Bacon's  Introduction  to  his  Reading  on  the  Statute  of  Uses,  13. 
Bacon's  Use  of  the  Laws,  24. 
Bacon's  Charge  against  Lumsden,  44. 
Bacon's  Maxims,  82,  84. 
Baron's  War  (The),  5. 
Broom's  Commentaries,  14. 
Broom's  Maxims,  82. 
Bolingbroke  Lord,  Letter  of,  16. 
Burnt  Njal,  The  Story  of,  14. 

Borthwick  on  Libel,  16,  43,  85,  139,  141,  148,  297,  1032,  1034,  1091. 
Bun-ill's  Law  Dictionary,  18,  19,   72,  82. 
Burrill  on  Presumptive  Evidence,  51. 


TABLE  OF  WORKS.  xliii 

Barrington  on  Penal  Statutes,  148. 

Bacon  (Roger),  Works  of,  33. 

Bosworth's  Anglo-Saxon  Dictionary,  34. 

Bentham's  Principles  of  Morals  and  Legislation,  63. 

Bennett  &  Hurd's  Leading  Criminal  Oases,  1432. 

Boston  Monthly  Law  Reporter,  255. 

Buller  N.  P.,  173,  954,  966,  1289. 

Code  of  Procedure,  New  York,  1342,  1343,  1346,  1350,  1352,1353,1354, 

1368,  1374,  1495,  1496,  1521,  1531,  1740,  1792,  1806,  1883. 
Contempts,  Inquiry  into  Doctrine  concerning,  1154. 
Campbell's  (Lord),  Lives  of  the  Chief  Justices,  1083,  1154,  1172,  1432. 
Code  Criminel,  148. 
Capgraves  Chronicle  of  England,  4. 
Coke's  Institutes,  5,  11. 
Calendar  of  State  Papers,  6. 
Chitty's  General  Practice,  14,  71. 
Cousin,  18. 

Comyn's  Digest,  18,  85,  121,  140,  298,  327,  380,  761,  934,  954. 
Cowen  &  Hills  Notes,  20. 
Chitty  on  Pleading,  24,  1785. 

Cooke  on  Defamation,  80,  132,  666,  966,  1064,  1115,  1651. 
Doria  &  McCreas  Law  of  Bankruptcy,  1346. 
Domat's  Civil  Law,  21,  669,  1088,  1526. 
Drewry  on  Injunctions,  25. 
Dugdale's  Origines  Juridicales,  30. 
Disney's  Ancient  Laws  against  Immoralities,  30. 
Doddridge's  English  Lawyer,  82. 
Doctor  and  Student,  82. 
Danver's  Abridgment,  97. 
Danske  Erobring,  of  England,  &c,  8,  33. 
Dunlap's  Admiralty  Practice,  1088. 
English  Parliament,  Ordinances  of,  1  6. 
English  Record  Commissioners  Publications,  30,  44. 
Encyclopedia  Britainica,  12,  16,  18. 
Ecclesiastical  Commissioners  Report,  39. 
Ethica  Christina,  33. 
Edinburgh  Review,  24,  62. 
Edwards  on  the  Will,  64,  65. 

Essai  sur  l'Histoire  de  la  Civilization  en  Russie,  14. 
Finch's  Law,  16. 

Forsyth's  History  of  Trial  by  Jury,  35,  55,  56,  1432. 
Fortescue,  De  Laudibus  Lcgum  Angliae,  35,  82. 
Foss'  Judges  of  England,  93. 


xliv  TABLE  OF  WORKS 

Finlayson's  Common  Law  Procedure  Act,  1530. 

Fourth  Estate  (The),  1300. 

Federalist  (The),  1300. 

Frazer's  Magazine,  1154. 

George,  on  Libel,  17,  18,  85,  121,  123,   149,  643. 

Gurdon's  History  of  Court  Baron  and  Court  Leet,  30. 

Greenleaf  on  Evidence,  80,  140,  1288,  1387,  1466,  1749. 

Howell's  State  Trials,  26,  55,  68,  84. 

Hudson  on  the  Star  Chamber,  26. 

Hawkin's  Pleas  of  the  Crown,  18,  26,  121,  132,  1091,  1117. 

Hilliard  on  Torts,  4,  18,  71,  119,  121. 

Highmore  on  Bail,  26. 

Hallam's  History  of  the  Middle  Ages,  35. 

Historical  Law  Tracts,  43. 

Hazard  on  the  Will,  64,  65. 

Hales'  History  of  the  Common  Law,  639. 

Hale's  Pleas  of  the  Crown,  72. 

Hazlett's  Essay  on  Wills,  93. 

Holt  on  Libel,  12,  14,  15,  18,  24,  30,38,  75,  91,   100,  103,  111,    113,  114, 

115,  121,  124,  132,  137,  138,  142,  680,  710,  748,  1154,  1163,  120',). 
Holt's  Nisi  Prius,  1108. 

Heard  on  Libel,  16,  131,  150,  169,  231,  241,  292,  332,  476,  522,  1469. 
Hume's  History  of  England,  1080. 
House  of  Lords,  Journals  of,  84. 
Jacob's  Law  Dictionary,  2,  8,  11,  36,  43. 
Jones  on  Libel,  85. 

Johnson's  Institutes  of  the  Civil  Law  of  Spain,  30. 
Justinian  Institutes,  5,  148,  481. 
Kent's  Commentaries,  24,  85,  1032. 
Locke  on  the  Conduct  of  the  Understanding,  82,  149. 
Liberty  of  the  Press,  Essay  on,  1298. 
Leigh's  Nisi  Prius,  653. 

Lewis  on  Authority  in  Matters  of  Opinion,  38. 
Libels,  Digest  of  the  Law  concerning,  16. 
London  Law  Magazine,  41,  54,  1322. 
London  Quarterly  Review,  93. 
Loft,  Capel,  Essay  on  Libels,  18. 
Lieber  on  Civil  Liberty,  20,  1123. 
Lambard  Saxon  Laws,  30. 
Lappenburg's  Histoiy  of  England,  34. 
Leges  Gul.  Conq.,  44. 
Lindley's  Studies  of  Jurisprudence,  70. 
Laws,  see  Statutes. 
London  Times,  1087. 


REFERRED  TO.  xlv 

London  Quarterly  Review,  1322. 

Mayne  on  Damages,  1457,  1470,  1481. 

Mirrour  of  Justices,  4,  6. 

Milton  John,  Areopagitica,  1300. 

Mackenzie's  Narrative,  1 G. 

May's  Law  and  Practice  in  Parliament,  1084. 

Maunder,  18. 

Monthly  Law  Reporter,  New  Series,  1280,  1284,  1322. 

Mence  on  Libel,  !),  18,  24,  30,  33,  38,  91,  1297. 

Montford,  Simon  De,  Miracles  of,  5,  33. 

Minshai,  or  Guide  into  the  Tongues,  18. 

Maine,  Inquiry  into  the  origin  of  Legal  Ideas,  22,  45. 

Michaelis  Commentary  on  the  Law  of  Moses,  30 

March  on  the  Action  of  Slander,  32,  1154. 

McNally,  Criminal  Evidence,  44. 

Mills'  Logic,  79,  142. 

Massachusetts,  Sketc  >es  of  Judicial  History  of,  30. 

Norske  Folkes  Historie,  8. 

North  British  Review,  8. 

Nicholson,  Prefat.  ad.  Leg.  Anglo  Sax.,  30. 

New  York,  Constitution  of,  1080,  1081,  1301. 

Parry — Lord  Campbell's  Libel  Act,  146. 

Pitcairn's  Criminal  Trials  in  Scotland,  30. 

Petit,  Leges  Attica,  30. 

Pascal's  Letters,  33. 

Pomeroy,  Introduction  to  Municipal  Law,  31. 

Palgrave  Rise  &c.  of  the  English  Commonwealth,  34,  35. 

Palgrave  History  of  Normandy  and  of  England,  37. 

Political  Songs  of  England,  93. 

Political  Ballads,  55. 

Pope's  Satires,  5. 

Pall  Mall  Gazette,  1087. 

Parsons  on  Contracts,  722. 

Parliamentary  History,  1032. 

Redfleld  on  Wills,  669. 

Raes  Medical  Jurisprudence,   1280. 

Rastell's  Entries,  103. 

Russell  on  Crimes,  18,  71. 

Reeves'  History  of  the  Common  Law,  28,  148. 

Holies'  Abridgement,  36,  140,  143,  354,  481,  501,  515,  1762. 

Report  of  Criminal  Law  Commissioners,. 1432. 

Report  of  House  of  Lords  on  Libel,  17,  42,  73,  1032,  1087. 

Report  to  House  of  Commons  on  Publication  of  Printed  Papers,  1084. 

Report  on  Leprosy,  640. 


xlvi  TABLE  OF  WORKS 

Report,  Pamphlet,  680. 
Reading  on  the  Statute  Law,  1161. 
Reg.  Aberd.,  4. 
Ridley's  Civil  Law,  4,  6. 
Sedgewick  on  Damages,  1466. 
Somers  Lord,  on  Grand  Juries,  6. 
Saunder's  on  Pleading  and  Evidence,  328,  737. 
Selwyn's  Nisi  Prius,  148,  1034. 
Stephens'  Ecclesiastical  Statutes,  8. 
State  Papers,  Calender  of,  6. 
Stephens'  on  Pleading,  27,  29. 
Stephens'  Criminal  Law,  49,  54,  64,  68,  85,  88,  111. 
Sullivan's  Lectures,  29. 

Stierr.hook  De  Jure  Vetusto  Sucornum  &c,  30. 
Saltern,  De  Antic.  Leg.  Brit,  30. 
Sharswood's  Blackstone's  Commentaries,  36. 
Sheppard  on  the  Action  for  Slander,  1 553. 
Smith's  Leading  Cases,  937,  968. 
Spencer,  4. 
Shakespeare,  4. 

Smith,  Sidney,  Elementary  Sketches  of  Moral  Philosophy,  66. 
Story  on  the  Constitution,  1300,  1306. 
Story  on  Contracts,  620. 
Story  on  Agency,  1331. 
Story  on  Equity  Jurisprudence,  26. 
Swinburn  on  Wills,  669. 
Starkie  on  Evidence,  81,  132,  1893. 

Starkie  on  Slander,  30,  43,  58,  61,  71,  78,  93,  95,  97,  99,  103,  111,  113,  114, 
121,  125, 127,  128, 132,  134,  136,  141,  147,  160, 166,  169,  173,  295,  299, 
333,  334,  354,  366,  376,  414,  427,  491,  516,  518,  587,   659,  663,  720, 
728,  748,  911,  968,  984,  1031,  1032,1033,  1034,  1063,  1069,  1133,  1134, 
1136,  1154,  1279,  1469,  1497,  1511,  1513,  1553,  1557,  1564,  1582,  1590, 
1596,  1695,  1697,  1762. 
Shelley,  Memoir  of,  1154. 
Solicitors  Journal,  1 1 54. 
Statutes  of,  Arkansas,  18. 

California,  18. 

Illinois,  18. 

Iowa,  18. 

Georgia,  18. 

Maine,  18. 

Massachusetts,  1744. 

Mew  York,  26,  1080,  1081,  1086,  1097,  1122,  1123,  1154,  1304, 
1344,  1354,  1503,  1507,  and  see  Code  of  Procedure. 


REFERRED  TO.  xlvii 

Statutes  of  England,  4,  16,  28,  30,  39,  495,  1080,  1085,  1286,  1287,  1304, 
1343,  1352,  1358,  1497,  1530,  1595. 
Hotchkiss'  Digest,  18. 
Prince's  Digest,  18. 

Thibaut,  System  of  Pandekten  Rechts,  22. 

Trench  Dean,  19,  142. 

Tremayne's  Pleas  of  the  Crown,  38. 

Tacitus  De  Mor.  Germ.  30. 

Thomas,  History  of  Printing  in  America,  30. 

Tomlin's  Law  Dictionary,  16. 

Tindal's  History  ofEngland,  1300. 

Trials  per  Pais,  1881. 

Trials  at  Nisi  Prius,  Introduction  to  the  Law  relative  to,  4. 
Finnerty's,  18. 
David  Lee  Childs,  18. 
Gibbs®.  Arthur,  1154. 

United  States,  Constitution  of,  1081,  1301. 

Voorhies'  Code,  1369,  1744. 

Vidian's  Entries,  2. 

Valentine's  Corporation  Manual,  30,  1280. 

Viner's  Abridgement,  2,  26,  36,  39,  97,  105,  106,  132,  140,  142,  174,  220, 
223,  228,  409,  410,  415,  418,  423,  435,  441,  519,  539,  541,  544,  555, 
556,  570,  578,  579,  580,  582,  583,  584,  585,  586,  587,  588,  589,  750,' 
755,  784,  788,  800,  806,  807,  812,  814,  815,  820,  861,  875,  954,  1091, 
1095,  1104,1113,  1512. 

Wood's  Civil  Law,  2,  43,  49,  1280. 

Wood's  Institutes,  126,  137. 

Westminster  Review,  14,  16,  19. 

Whewell,  The  Mechanical  Euclid,  19. 

Woodeson's  Lectures,  19. 

Wilkin's  Leges  Anglo-Sax.,  30. 

Wilkin's  Political  Ballads,  55. 

Wright,  England  under  the  House  of  Hanover,  55. 

Willard's  Equity  Jurisprudence,  1124. 

Yate's  Pleadings  and  Forms,  980,  1785. 


WORKS  OF  REFERENCE. 


[For  the  convenience  of  those  who  may  desire  further  information  on  the  sub- 
ject of  Slander  and  Libel,  we  subjoin  the  following  list  of  publications,  to  which 
reference  may  be  made.] 

Treatise  on  Libel.     By  Sir  Thomas  Mallett,  Judge  of  the  Queen's  Bench, 

England.     (Referred  to  by  Finnerty  when  brought  up  for  Judgment.) 
An  Essay  on  the  Liberty  of  the  Press,  chiefly  as  it  respects  personal 

slander.  By  Bishop  Hayter. 
"  Another  Letter  to  Mr.  Almon  on  Matters  of  Libel." — "  The  posi- 
tion that  it  is  not  material  whether  the  libel  be  true  or  false,  or  whether 
the  person  that  made  it  be  of  good  or  ill  fame,  is  a  proposition  of  truth 
and  the  provision  of  a  sanctuary  for  weak  and  wicked  men,  who  may 
be  employed  as  ministers  or  judges." 
The  People.  Dedicated  to  Sir  Francis  Burdett,  Bart.  By  an  unlettered 
man.  Printed  for  the  Author,  and  sold  by  M.  Jones,  5  Newgate  Street, 
London.     1811. 

[This  work  professes  to  contain  an  analysis  of  Pitt's  system,  and  to 
show  the  great  danger  of  the  theory,  and  with  regard  to  libels. 
To  trace  that  theory  to  its  origin,  and  that  it  is  directly  contrary 
to  the  reformed  religion  and  the  New  Testament.] 

Law  of  Libel  (On  the),  with  strictures  on  the  self-styled  Constitutional 
Society.     By  John  Hunt.     8vo.     London,  1823. 

Erskine's  Speech  in  the  case  of  the  King  v.  Williams,  for  publishing 
Paine's  Age  of  Reason ;  with  Mr.  Kyd's  reply  and  Lord  Kenyon's 
charge  to  the  Jury. — Trials,  vol.  xviii.,  JV.  Y.  State  Library. 

The  Englishman's  Right  ;  or,  a  Dialogue  between  a  Barrister  at  Law  and 
a  Juryman,  concerning  the  antiquity,  use,  power,  and  duty  of  Jurors, 
by  the  Law  oftEngland.  Extract  in  appendix  to  trial  of  John  Lam- 
bert for  libel. — Trials,  vol.  xv.,  N.  Y.  State  Library. 

Juryman  Touchstone  (The)  ;  or,  A  full  refutation  of  Lord  Mansfield's 
opinion  in  Crown  Libels.     8vo.     London,  1784. 

A  Letter  on  Libels  and  Warrants.  (Referred  to,  1  Biographical  Anec- 
dotes, by  Almon,  p.  226.) 


WORKS  OF  REFERENCE.  xlix 

Massey's  History  of  England.  Vol.  2.  As  to  Dowdeswell's  Bill  to 
make  juries  judges  of  the  Law  in  libel  cases. 

Speech  op  Sir  Robert  Peel,  in  vindication  of  the  House  of  Commons 
claim  to  publish  its  proceedings.     London,  1837. 

A  Letter  to  Lord  Langdale  on  the  recent  proceedings  of  the  House  of 
Commons  on  the  subject  of  privilege.  By  Thomas  Pemberton,  M.  P. 
2d  edit.     London,  1837. 

Observations  on  the  Rights  and  Duties  op  Juries  in  trials  for  Libels, 
with  remarks  on  the  origin  and  nature  of  the  Law  of  Libels.  By  J. 
Towers.     8vo.     Dublin,  1785. 

Free  Speech.     An  oration  by  Daniel  Webster,  A.  D.  1814. 

Lecture  on  the  Law  op  Libel.     By  James  T.  Brady,  Esq. 

An  Apology  for  the  Freedom  of  the  Press.  By  the  Rev.  Mr.  Robert 
Hall.     London,  1821. 

Bollan  on  the  Right  of  Every  Man  to  Think  and  Speak  Freely. 
(Referred  to  Quincy's  Massachusetts  Reports,  p.  270.) 

Of  Slander  and  Flattery.     A  sermon  by  Jeremy  Taylor. 

Erskine's  Speeches  on  subjects  coimected  with  the  Liberty  of  the 
Press. 

"  Discussion  of  the  Law  of  Libel  as  at  present  received,  in  which  its 
authenticity  is  examined ;  with  incidental  observations  on  the  Legal 
effect  of  Precedent  and  Authority."  Pamphlet.  London,  1785.  As- 
cribed to  J.  W.  Adair. 

Skene  on  Crimes.  25th  chapter  of  title  2 — Of  famous  Libels  and  Sedi- 
tious Speeches. 

Tract  on  Libel.  By  Lord  Bacon.  Mentioned  in  the  memoirs  of  T.  Hol- 
lis,  p.  169. 

[It  is  referred  to  in  a  note  to  T.  Holt  White's  edition  of  Milton's 
.  Areopagitica,  and  the  annotater  adds :  "  My  inquiries  after  this  pos- 
posthumoua  publication  have  been  fruitless."  Query.  If  the  same 
tract  as  one  entitled  "  Certain  observations  upon  a  Libel.  By  Lord 
Bacon,  A.  D.  1592,"  to  be  found  in  several  editions  of  Bacon's 
works.] 

Lord  Sidmouth's  Circular  respecting  libels. 

Earl  Gray's  Speech  on  the  above  circular.     House  of  Lords,  1817. 

Tindal's  Continuation  of  Rapin's  History  of  England  as  to  Pulteney'a 
Bill  to  prohibit  the  circulation  of  unlicensed  newspapers. 

Domestic  Annals  of  Scotland.     By  Chambers.     Vol.  1,  p.  126. 

Dodsley's  Annual  Register.     A.  D.  1792. 

E 


1  WORKS  OF  REFERENCE. 

Mb  Stammer's  Pamphlet  on  the  case  of  Rex  v.  DTsraeli. 

[I  have  been  unable  to  find  a  copy.  It  is  referred  to  1  Townsend's 
Modern  State  Trials,  260.] 

Bacon's  Abridgement,  tit.  Slander,  Courts  Ecclesiastical. 

Sheppard's  Abridgement,  tit.  Libel. 

Blue  Laws  of  Connecticut. 

Otto  Thesaurus.    Vols.  3,  4. 

Coote's  Ecclesiastical  Coubts,  tit.  Defamation. 

Burn's  Ecclesiastical  Law,  tit.  Defamation. 

Quinct's  Massachusetts  Repobts,  A.  D.  1761  to  A.  D.  1777.     See  pages 

260,  267,  270,  278,  309— Charge  as  to  law  of  libel. 

Page  245 — As  to  right  of  the  court  to  commit  for  libel. 

Page  561 — Discussion  on  the  right  of  juries  to  judge  of  law  and  fact. 
Essai  Historique  sur  la  Libert e  d'ecrere  chez  les  ancienes  et  au  moyen 

age,  sur  la  liberte  de  la  press,  &c ,  &c.     Par  G.  Peignot. 
Encyclopedia  Brittanica,  supplement ;  art.  Liberty  of  the  Press. 
Jacob's  Law  Dictionary,  titles  Justification,  Court  of  Piepowders,  Copia 

Libelli  Deliberanda,  Scandall. 
Viner's  Abridgement,  tit.  Good  Behaviour. 
McDougall's  Case,  3  Documentary  History  of  New  York,  534 ;  cited  10 

Abbott's  Practice  Reports,  170;  and  see  id.  p.  169. 
Freedom  of  Wit  and  Humor.     By  Lord  Shaftesbury.     A.  D.  1709. 
Considerations  on  the  Law  of  Libel  as  relating  to  publications  on  the 

subject  of  religion.     By  John  Search.     Ridgway,  1833. 

[This  pamphlet  is  referred  to  11  London  Law  Magazine,  444.  John 
Search  is  a  fictitious  name.] 

The  Craftsman,  No.  281,  vol.  viii.,  p.  213. 

[Contains  the  reasons  why  the  Commons  would  not  agree  to  the 
clause  which  revived  the  old  printing  act,  delivered  at  a  conference 
with  the  Lords,  1695.] 

A  Digest  of  the  Law  Concerning  Libels  containing  all  the  resolutions 

in  the  books  on  the  subject,  and  many  MS.  cases,  &c,  by  a  gentleman 

of  the  Inner  Temple.     4to.     London,  1765. 
Reasons  Against  the  Intended  Bill  for  laying  restraint  on  the  Liberty 

of  the  Press.     London,  1792. 
Essay  on  the  Liberty  of  the  Press.     Richmond,  1803. 
London  Quarterly  Review.     April,  1865.      Libel  and  freedom  of  the 

Press. 
Edinburg  Review.     Review  of  George  on  Libel.     Abuses  of  the  Press, 

vol.  22.     Review  of  Holt  on  Libel,  2d  edition,  vol.  27.     French  Law 

of  Libel,  vol.  32.     Libels  on  Christianity,  vol.  58. 


WORKS  OF  REFERENCE.  li 

Westminister  Review.    Review  of  Mence  on  Libel,  vol.  3. 

London  Law  Magazine.  Application  of  Libel,  vol.  2.  The  Law  of  Libel, 
vol.  11.  Communicating  slanderous  words  in  answer  to  inquiries,  vol. 
34.  Presumptions  of  Law  and  presumptive  evidence,  vol.  6  The  pro- 
vince of  the  Judge  distinguished  from  the  province  of  the  jury,  vol.  12. 

Solicitors'  Journal.  The  Law  of  Libel,  vol.  8.  Libels  on  Professional 
Men,  vol.  9.    Law  of  Libel,  vol.  10. 

City  Hall  Reporter.     Slander,  p.  1G0. 

Cornhill  Magazine,  January,  1867. 

Eclectic  Review,  March,  1867. 

Knickerbocker  Magazine.    Scandal  and  Envy,  vol.  33. 

Christian  Examiner,  vols.  16,  17. 
"         Discipline,  vol.  3. 

Western  Law  Journal,  vol.  2.    N.  S. 

American  Encyclopedia,  art.  Libel. 

American  Law  Journal.     (Hall,  Baltimore),  vol.  1.     Commonwealth  v. 

Duane,  Commonwealth  v.  Cobbett,  State  of  Maryland  v.  Irvine,  Carr  v. 

Hood,  Van  Vechten  v.  Hopkins.   Vol.  3.     The  People  v.  Frothingham, 

Libel  on  General  Hamilton.     Vol.  4.     Rex  v.  Creavy. 
American  Quarterly  Review,  vol.  5,  (A.  D.  1829),  contains  a  Review  of 

Holt's  Law  of  Libel. 

American  Lancet.     Report  of  Libel  Trial  in  New  York,  A.  D.  1831. 

Trial  of  John  Stockdale  for  a  libel  on  the  House  of  Commons,  in  the 
Court  of  King's  Bench  in  1789 — with  an  argument  in  support  of  the 
Rights  of  Juries — London,  1790. 

The  Trial  of  Theophilus  Swift  for  a  Libel  on  the  Fellows  of  the  Dub- 
lin University,  and  the  Trial  of  the  Rev.  Dr  Burrows  for  a  libel  on 
Theophilus  Swift,  published  together  with  notes  by  Theophilus  Swift. 

Report  of  the  Maharaj  Libel  case,  Bombay,  1862,  as  to  which  see 
Westminister  Review,  January,  1864. 

Pamphlet  Trials,  of  Joseph  T.  Buckingham  for  Libel  on  John  N.  Maffit ; 
of  David  Lee  Childs  for  Libel  on  John  Kejs;  of  Daniel  Isaac  Eaton  for 
Libel  entitled  "Politics  for  the  People,  or  Hogs- wash  ; "  of  Dr.  New- 
man ;  of  Aston  Williams ;  of  Francis  S.  Beattie ;  of  William  Hone. 

Among  the  Papyri  unearthed  from  the  ruins  of  Herculaneum  is  an 
essay  on  Freedom  of  Speech,  by  Philodemus.  It  forms  part  of  a 
work  entitled  "Philodemi  Ilepl  'Pr/Topii^g,  ex  Herculanensi  Papyro 
restitutuit,  Latine  vertit,  et  Dissertationibus  auxit.  [E.  Gros,  Parisiis : 
1840.     Publisher.] 


SLANDER  AND  LIBEL. 


CHAPTER  I. 

INTRODUCTORY 


Language  as  a  means  of  effecting  injury.  Slander — Libel — 
Defamation.  Redress.  The  Law  of  Libel.  Objeet  in 
view.     Division  of  subject.     Attempts  to  define  Libel. 

§  1.  Among  the  means  which  one  individual  may  employ  to 
affect  another  or  to  affect  society  in  general  are  sounds  and 
signs.1  Lanoriacfe,  in  so  far  as  it  is  the  medium  for  communi- 
eating  or  exciting  ideas,  consists  of  a  system  of  sounds  and 
signs,  and  is  the  chief  among  the  sounds  and  signs  which  affect 
individuals  or  society  in  general.2  Language  expressed  in  sound 
is  oral  language  or  speech.     Language  expressed  in  signs  is  writ- 

1  As  ringing  bells,  firing  guns,  beating  drums,  clapping  bands,  booting,  &c, 
see  Martin  v.  Nulkin,  2  P.  Wms.  266;  Saltan  v.  De  Held,  2  Sim.  N.  S.  133  ;  21 
Law  Journ.  Rep.  N.  S.  Ch.  153;  16  Jur.  326;  9  Eng.  Law  and  Eq.  Rep.  104; 
MoshierT.  Utica  &  Sell.  R.  R  Co.,  8  Barb.  427;  Cole  v.  Fisher,  11  Mass.  137; 
Loubz  v.  Hafner,  1  Dev.  185 ;  Gregory  v.  Brunswick,  6  M.  and  G.  953  ;  Trustees, 
<&c,  v.  Utica,  &c,  6  Barb.  313 ;  Davidson  v.  Isham,  1  Stock.  186;  Fish  v.  Dodge, 
4  Denio,  311. 

2Tbere  is  notbing  in  nature  but  may  be  an  instrument  of  mischief  (L'd  Chief 
J.  Pratt  in  Chapman  v.  Pickersgill,  2  Wils.  145). 

"  A  very  great  part  of  the  mischiefs  which  vex  the  world  arise  from  words." 
(Burke  in  a  letter  to  his  Son.) 

Words  are  contained  under  the  general  expression  of  a  human  act,  as  also 
signs  which  have  the  same  effect  with  word-).     (  Wood's  Civil  Law,  28.) 
2 


18  SLANDER  AND  LIBEL. 

ten  language,  or  writing  and  effigy.  By  writing3  is  intended  to 
be  understood  every  means  of  symbolizing  language  by  alphabetic 
characters,  with  every  kind  of  implement,  as  pen,  pencil,  grav- 
er, type  ;  with  every  kind  of  pigment,  as  ink,  lead,  chalk  ;  on 

Language  is  not  the  only  mode  by  which  reputation  may  be  injured.  "  Scan- 
dal signifies  a  report  or  rumor  or  an  action  whereby  one  is  affronted  in  public." 
[Jacobs'  Law  Bid.)  Thus,  in  Brewer  v.  Bay,  11  M.  and  W.  625,  one  cause  of  special 
damage  was  that  defendants,  by  causing  plaintiff's  goods  to  be  seized  on  an  un- 
founded claim  for  debt,  occasioned  his  customers  to  think  him  insolvent ;  and  in  tres- 
pass for  breaking  and  entering  plaintiff's  dwelling,  upon  false  charge  of  having 
stolen  property  concealed  therein,  per  quod  she  was  injured  in  her  credit,  it  was  held 
that  the  jury  might  give  damages  as  aggravated  by  the  false  charge  (2  Maule  and 
Selw.  77).  As  to  injury  to  reputation  by  act  see  Beaumont  v.  Reeve,  8  Adol.  and 
Ell.  483 ;  and  1  Siderfin,  375,  where  one  Cooper  brought  an  action  upon  the  case 
against  Witham  and  his  wife,  for  that  the  wife  maliciously  intending  to  marry 
him,  did  often  affirm  that  she  was  sole  and  unmarried,  and  importuned  et  strenue 
inquisivit  the  plaintiff  to  marry  her ;  to  which  affirmation  he  gave  credit,  and 
married  her,  when  in  acto  she  was  wife  of  the  defendant ;  so  that  the  plaintiff  was 
much  troubled  in  mind,  and  put  to  great  charges,  and  damnified  in  his  reputa- 
tion. He  had  a  verdict,  but  no  judgment ;  for  by  Twisden,  J.,  the  action  lies 
not,  because  the  thing  here  done  is  felony;  no  more  than  if  a  servant  be  killed, 
the  master  cannot  have  an  action  per  quod  servitium  amisit,  quod  curia  concessit  ; 
see  also  Vidian's  Entries,  where  is  a  form  of  declaration  for  saying:  Regard 
brothers  went  to  a  house  which  was  a  brothel  and  ought  to  be  torn  down,  special 
damage  that  the  house  was  torn  down. 

Language,  however  licentious  and  abusive,  is  not  a  trespass  (Adams  v.  Rivers, 
11  Barb.  397),  but  may  constitute  an  imprisonment  (Homer  v.  Battyn,  Buller's  N. 
P.  62 ;  Pike  v.  Hanson,  9  N.  II.  Rej).  491);  and  cruelty  (Burant  v.  Burant,  1 
Hagg.  Ecc.  R.  769;  Lockwood  v.  Bockivood,  2  Curteis  Ecc.  R.  281,  cited  and  ap- 
proved Bihin  v.  Bihin,  17  Abbott's  Rep.  26).  A  recognizance  to  keep  the  peace 
is  not  forfeited  by  reproachful  words  (4  Bl.  Com.  ch.  xviii).  As  to  speech 
being  the  foundation  of  a  criminal  prosecution,  see  2  Bishop  on  Crim.  Law,  §  813. 

If  a  man  menaces  my  tenants  at  will  of  life  and  member,  per  quod  they  depart 
from  their  tenures,  an  action  upon  the  case  will  lie  against  him,  but  the  threaten- 
ing without  their  departure  is  no  cause  of  action.  9  H.  7,  8,  Vin.  Ab.  Actions 
Case,  N.  c.  21. 

Action  lies  for  threatening  workmen  to  maim  and  prosecute  them,  whereby  the 
master  lost  the  selling  of  his  goods,  the  men  not  daring  to  go  on  with  their  work 
(Garret  v.  Taylor,  Cro.  J.  567  pi.  4,  a.  d.  1621 ;  see,  however,  Ashley  v.  Harrison, 
1  Esp.  48  and  post). 

3  Writing  includes  printing  (Saunderson  v.  Jackson,  2  Bos.  and  Pul.  238;  Hen- 
shaw  v.  Foster,  Pick.  318)  and  marks  with  a  lead  pencil  ( Geary  v.  Physic,  5  B.  and 
C.  238;   Classon  v.  Bailey,  14  Johns.  484).     See  Bouvier's  Law  Diet.  tit.  Effigy. 


SLANDER  AND   LIBEL.  19 

any  kind  of  substance,  as  paper,  parchment,  linen,  wood,  cop- 
per, steel,  stone.  And  by  effigy  being  intended  to  be  under- 
stood every  other  means  of  communicating  or  exciting  ideas 
other  than  by  speech  or  by  writing.  Effigy,  therefore,  includes 
pictures,  statues,  gestures. 

§  2.  The  effect  of  language  may  be  beneficial  or  injurious. 
If  injurious,  the  injury  may  amount  to  a  wrong,  entitling  the 
party  wronged  to  redress  by  law.  The  designations  of  the 
wrong  and  of  its  remedy  and  of  the  wrong  doer  differ  according 
to  the  means  employed  to  effect  the  wrong. 

§  3.  One  may  be  so  injuriously  affected  by  speech  as  to  be 
what  is  termed  slandered;  and,  in  that  event,  the  speech  so 
affecting  him  is  called  slander4  or  a  slander,  and  the  speaker  is 
denominated  a  slanderer. 


4  Slander  is  defaming  a  man  in  his  reputation  by  speaking-  or  writing  words 
which  affect  his  life,  office  or  trade ;  or  which  tend  to  his  loss  of  preferment  in 
marriage  or  service,  or  to  his  disinheritance,  or  which  occasion  any  particular 
damage.  {Introduction  to  the  Law  relative  to  trials  at  Nisi  Prius.  By  a  Learned 
Judge  {Lord  Bathurst],     Vol  1.  p.  3.) 

Slander  is  the  imputation:  1.  Of  some  temporal  offence  for  which  the  party 
might  be  indicted  and  punished  in  the  temporal  courts.  2.  Of  an  existing  con- 
tagious disorder,  tending  to  exclude  the  party  from  society.  3.  An  unfitness  to 
perform  an  office  or  employment  of  firofit,  or  want  of  integrity  in  an  office  of 
honor.  4.  Words  prejudicing  a  person  in  his  lucrative — possession  [qy.  pro- 
fession], or  trade.  5.  Any  untrue  words  occasioning  actual  damage.  (1  Hilliard 
on  torts,  ch.  vii.  §  3.) 

Slander  is  defined  to  be  "  the  publishing  of  words  in  writing,  or  by  speaking, 
by  reason  of  which  the  person  to  whom  they  relate  becomes  liable  to  suffer  some 
corporeal  punishment,  or  to  sustain  some  damage."     (Bac.  Abr.) 

"  Slander  being  an  unwritten  or  imprinted  libel,  and  libel  a  written  or  printed 
slander."     (1  Hilliard  on  torts,  ch.  vii.  §  2.) 

The  word  slander,  as  used  in  former  times,  seems  to  have  had  a  meaning 
different  to  that  in  which  it  is  now  used.  Thus  :  "But  because  some  are 
wrongfully  slandered  (accused),  King  Henry  I.  ordained  that  none  should  be 
arrested  or  imprisoned  for  a  slander  (accusation)  of  mortal  offence,  before  he  was 
thereof  indicted  by  the  oaths  of  honest  men  before  those  who  had  authority  to 
take  such  indictments."  (Mirrour  of  Justices,  ch.  11,  §  22.)  "  In  this  same  year 
the  mysseles  (lepers)  thorow-oute  Cristendom  were  slaundercd  that  they  had  made 
covenaunt  with  Sarasenes  for  to  poison  all  Christen  men."  (Capgrave,  Chroni- 
cle of  England,  p.  ISO.) 


20  SLANDER  AND  LIBEL. 

§  4.  One  may  be  so  injuriously  affected  by  writing  or  effigy 
as  to  be  what  is  termed  libeled  ;  and,  in  that  event,  the  writing 
or  effigy  so  affecting  him  is  called  libel  or  a  libel,  and  he  who 
puts  forth  such  writing  or  effigy  (the  publisher  or  venter)  is  de- 
nominated a  libeler.5 


In  a  document  addressed  by  the  Dean  and  Chapter  of  Aberdeen  to  Bishop 
Gordon,  dated  January  5,  1558,  is  the  following: 

"  Imprimis,  that  my  Lord  Bishop  cause  the  kirkmen  within  his  diocie  to  re- 
form themselves  in  all  their  slanderous  manner  of  living-,  and  to  remove  their 
open  concubines,  as  well  great  as  small.  Secundo,  that  his  Lordship  will  be  so 
good  as  to  show  edificative  example — in  special  in  removing  and  discharging 
himself  of  the  company  of  the  gentlewoman  by  whom  he  is  greatly  slandered  ; 
without  the  which  be  done,  diverse  that  are  partners  say  they  cannot  accept 
counsel  and  correction  of  him  which  will  not  correct  himself,"  <fcc,  Ac. — Reg. 
Aberd.,  lxi. 

If  any  slanderously  charge  another  with  any  false  crime  {Ridley's  Civil  Lav, 
•31);  and  in  the  Statute,  3  Edw.  1  ch.  34,  none  are  to  publish  false  news  whereby 
slander  may  grow  between  the  king  and  his  people. 

Mis-say,  to  slander,  to  speak  ill.     (Spencer.) 
"  I  would  not,     *     * 

Have  you  so  slander  any  moment's  leisure 
As  to  give  words  or  talk  with  the  Lord  Hamlet."     (Shakespeare.) 

6  "  Libeller — he  who  shall,  to  the  infamy  of  another,  write,  compose,  or  publish 
a  book,  song,  or  fable,  or  maliciously  procure  any  of  those  acts  to  be  done,  is 
guilty  of  a  libel."     (Just.  Inst.) 

"  The  distinction  between  the  satirist  and  the  libeller  is,  that  the  one  speaks  of 
the  species,  the  other  of  the  individual ;  the  one  holds  the  glass  to  thousands  in 
their  closets,  that  they  may  contemplate  the  deformity,  and  thereby  endeavor  to 
reduce  it,  and  thus  by  private  mortification  avoid  public  shame.  Thus  the  sati- 
rist privately  corrects  the  fault,  like  a  parent,  while  the  libeller  mangles  the  indi- 
vidual like  an  executioner."     (Joseph  Andrews,  vol.  2,  p.  5.) 

"  And  indeed  there  is  not  in  the  world  a  greater  error  than  that  which  fools 
are  apt  to  fall  into,  and  knaves  with  good  reason  to  encourage  the  mistaking  a 
satirist  for  a  libeller."     (Pope,  Anon.  Satires  and  Epistles — Advertisement.) 

"  The  early  English  satirists  were  mighty  in  their  vocation  against  the  law- 
yers, the  regular  and  secular  clergy,  and  the  more  eminent  professors.  The 
political  ballad-mongers  aimed  higher.  They  stoutly  supported  Simon  de  Mont- 
fort  against  Henry  the  Third.  This  support  was  probably  the  occasion  for  the 
statute  of  12*75,  '  against  slanderous  reports  or  tales  to  cause  discord  betwixt  king 
and  people.'  "  (See  The  Barons'  War,  &c,  by  W.  H.  Blaauw,  M.  A. ;  The  Mir- 
acles of  Simon  de  Montfort,  Camden,  Soc.  Tub.) 

A  Barrator  is  a  mover  of  suits  and  quarrels  in  courts      ***** 
by  spreading  false  rumors  and  reports  to  raise  discord  among  neighbors.    (1  Coke 
Ins.  368.)     Lampooner  (see  3  Lev.  24S.) 


SLANDER  AND  LIBEL.  21 

§  5.  So,  too,  at  least  in  England,  one  may  be  so  injuriously 
affected  by  language,  whether  in  the  form  of  speech,  writing, 
or  effigy,  as  to  be  what  is  termed  defamed  ;6  in  which  event  the 
language  so  affecting  him  is  called  defamation,  and  he  from 
whom  the  language  proceeds  is  denominated  a  defamer. 

§  6.  Again,  by  means  of  language  may  be  effected  a  wrong 
termed  "  a  malicious  prosecution,"  as  also  the  wrong  termed 
"  slander  of  title."  Neither  to  the  authors  of  these  wrongs  nor 
to  the  parties  affected  has  any  descriptive  appellation  been  as- 
signed. 

§  7.  Besides  slander,  libel,  defamation,  malicious  prosecution 
and  slander  of  title,  language  is  the  means  by  which  may  be 
effected,  at  least  in  England,  the  offences  called  treason,7  heresy, 
sedition,  blasphemy,  profanity,  scandalum  magnatum,  calumny, 
scolding,  brawling,  menaces,  deceit,  perjury,  and  many  more.8 


8  Defamed  seems  formerly  to  have  been  used  in  the  sense  of  charged,  thus  in 
the  forms  of  indictment  referred  to  in  "  The  Hirrour  of  Justices,"  we  find  it  so 
used  ;  as  thus :  "  I  say,  Sebourge  there  is  defamed  by  good  people  of  the  sin  of 
heresy,"  &c,  and  in  Lord  Somers'  Tract  on  Grand  Juries,  "the  constitution 
intrusts  such  inquisitions  in  the  hands  of  persons  of  understanding  *       * 

that  might  suffer  no  man  to  be  falsely  accused  or  defamed."  "  Thieves  openly 
defamed  and  known."  (4  Bl.  Com.  ch.  xxii.)  "There  is  a  fame  against  Mr. 
Spencer  for  not  burying  Edward  Merrick  as  a  christian  ought  to  be." 
(Calender  of  State  Papers,  Domestic  Series,  of  the  reign  of  Charles  I.,  1633-1G34. 
Edited  by  John  Bruce.) 

"  To  dilfame  is,  as  Bartol  saith,  to  utter  reproachful  speeches  of  another  with 
an  intent  to  raise  up  an  ill  fame  of  him  and  therefore  himself  expresseth  the  act 
itself  in  these  words  :  Diffamare  est  in  mala  fama  ponere.  Albeit  diffamationa 
properly  consist  in  words,  yet  may  they  also  be  done  by  writing,  as  by  diffama- 
tory  libels,  and  also  by  dee :1s  as  by  signs  and  gestures  of  reproach,  for  these  no 
less  show  the  malicious  mind  of  the  diffamer  than  words  do."  (Ridley  Civil 
Law,  339.) 

7  In  the  United  States  there  must  be  some  overt  act  to  constitute  the  act  of 
treason.     (Bouvier's  Law  Diet.  tit.  I'reason.) 

B  Scolding  often  repeated  to  the  disturbance  of  the  neighborhood  makes  it  a 
nuisance,  always  punishable  at  the  lefit  and  therefore  indictable.  (The  Queen  v. 
Foxby,  6  Mod.  145.)  As  to  Hrawling  see  Stephen's  Ecclesiastical  Statutes,  p.  336, 
and  copious  notes;  and  see  Jacob's  Law  Diet.,  tit.  Cuckinstool.  In  Denmark  there 
was  a  species  of  libel  called  Bersoglisvisur  or  free-speaking  song.  When  King  Mag- 


22  SLANDER  AND  LIBEL. 

§  8.  Slander  is  a  private  wrong  or  tort,  cognizable  by  the 
common  law,  the  remedy  for  which  is  a  civil  action  formerly- 
known  as  an  "  action  on  the  case  for  words,"  and  now  as  an 
action  or  the  action  of  or  for  slander.9 

§  9.  Libel  is  both  a  public  wrong  or  crime  and  a  private 
wrong  or  tort,  cognizable  by  the  common  law.  The  remedy 
for  the  public  wrong  is  by  indictment  or  criminal  information. 
The  remedy  for  the  private  wrong  is  a  civil  action,  now  known 
as  an  action  or  the  action  of  or  for  libel. 

§  10.  Defamation  is  an  ecclesiastical  offence,  cognizable  only 
in  the  ecclesiastical  courts,  by  a  proceeding  in  such  courts. 

§  11.  The  redress  sought  in  the  actions  of  slander  and  libel 
is  a  pecuniary  compensation  called  damages  for  the  injury  sus- 
tained by  the  party  complaining,  to  be  recovered  against  the 
party  complained  against,  and  is  intended  solely  for  the  benefit 
of  the  complainant  ;10  on  the  other  hand,  the  proceeding  in  the 
ecclesiastical  court  is,  in  theory  at  least,  one  solely  for  the  ben- 
efit of  the  party  complained  against.     It  is  to  awaken  him  to  a 


mis  (say  about  A.  D.  1040)  gave  dissatisfaction  to  his  subjects,  a  meeting  was  held 
at  which  lots  were  drawn  as  to  which  one  of  those  assembled  should  address  one 
of  these  songs  to  the  King.  See  Bet  Norske  Folkes  Historic,  3  vols.,  Christiania, 
1852-5;  also  Ben  Bamke  Erobring  af  England  og  Normandid,  Copenhagen, 
18C3.     See  North  British  Review,  Nov.,  18C3. 

9  Slander  is  not  like  libel  an  indictable  offence.  (Bailey  v.  Bean,  5  Barb.  297.) 
Nor  is  a  single  precedent  of  any  criminal  proceeding  for  unwritten  imputations 
■upon  the  characters  of  individuals  to  be  found,  except  in  cases  of  high  treason, 

*  *  and  it  must  have  been  as  constituting  rather  an  offence  against  the 
government,  than  an  injury  to  the  individual,  and  being  therefore  seditious  that 
words  reflecting  on  a  magistrate  in  the  immediate  execution  of  his  office  were  for 
the  first  time  in  the  reign  of  Queen  Anne  held  to  be  indictable.  (Beg.  v.  Langley, 
2  Ld.  Raym.  1060;  Holt  R.  654.)  But  I  am  not  aware  that  Mr.  Starkie  has 
adverted  to  this  case,  or  to  the  doctrine  which  is  laid  down  in  it.  (1  Mcnce  on 
Bibel,  90.) 

10  "  Action  for  slander  is  to  recover  damages  for  words  spoken  of  a  person  who 
is  thereby  injured  in  his  reputation,  and  for  words  spoken  of  a  person  which  affect 
his  life,  office,  profession,  or  trade,  or  which  tend  to  his  loss,  or  occa>kn  any  par- 
ticular or  special  damage  to  him."     (Onslow  v.  Home,  3  Wilson,  ITT.) 


SLANDER  AND  LIBEL.  23 

sense  of  the  sin  he  has  committed,  and  cause  him  to  do  penance 
therefor  pro  salute  animce.  In  a  proceeding  for  defamation  no 
damages  are  nor  can  be  awarded  to  the  party  defamed.  The 
defamer  may  be  censured,  compelled  to  recant  the  defamation, 
to  perform  penance  and  pay  costs,  and  for  disobedience  to  the 
court's  decree  be  excommunicated.  Beyond  this  the  ecclesias- 
tical court  has  no  power.11 

§  12.  The  law  applicable  to  the  wrongs  here  termed  slan- 
der and  libel  is  sometimes  designated  the  law  of  libel ;  some- 
times the  law  of  defamation ;  and  sometimes  the  law  of  slan- 
der and  libel.  For  no  better  reason  than  that  it  is  the  one 
most  hi  use  we  shall  adopt  the  term  law  of  libel. 

§  IB.  The  term  law  of  libel,  as  generally  understood,  com- 
prises the  law  as  applicable  to  nearly  all  of  the  wrongs  which 
may  be  effected  by  means  of  language.  Our  purpose,  however, 
is  not  to  consider  the  whole  of  the  law  of  libel  so  understood, 
but  so  much  of  it  only  as  applies  to  slander  and  to  libel  as 
a  private  wrong. 

§  14:.  As  it  is  sometimes  only  that  wrords  which  affect 
another  amount  to  a  wrong,  wTe  purpose  to  ascertain,  if  we 
can,  what  are  the  rules  by  which  to  test  in  any  particular 
instance  of  words  affecting  another,  whether  they  do  or  do  not 


11  The  ecclesiastical  law  is  part  of  the  English  common  law.  (Reg.  v.  Millis, 
10  CI.  and  F.  534,  671;  and  see  Catterall  v.  CatteraU,  1  Robertson,  580;  Bishop 
on  Marriage  and  Divorce,  §  9.)  But  has  no  status  in  the  State  of  New  York.  (31 
Barb.  49,  60.) 

The  power  of  the  ecclesiastical  court  is  the  infliction  of  penance  pro  salute 
animce  and  awarding  costs,  but  not  damages.  (4  Co.  20,  2  Inst.  492.)  The  sen- 
tence of  an  ecclesiastical  court  in  a  proceeding  for  defamation  has  its  counter- 
part in  the  Scotch  Law  under  the  name  of  Palinode. 

As  to  suits  in  spiritual  or  ecclesiastical  courts  they  are  for  the  reformation  of 
manners  or  for  punishing  of  heresy  ;  defamation,  laying  violent  hands  on  a  clerk 
and  the  like.  *  *  *  Things  that  properly  belong  to  these  jurisdictions  are 
matrimonial  and  testamentary  and  defamatory  words  for  which  no  action  lies  at 
law,  as  for  calling  one  adulterer,  fornicator,  usurer  or  the  like.  (Jacob's  Law 
Diet.,  tit.  Courts  Ecclesiastical.)  The  courts  of  Piepowder  had  jurisdiction  of 
certain  actions  for  slander.     (Jacob's  Law  Diet.,  tit.  Court  of  Piepowders.) 


24  SLANDER  AND  LIBEL. 

constitute  a  wrong,  what  kind  of  wrong,  and  what  is  its  appro- 
priate remedy.  In  the  execution  of  this  purpose  we  desire  not 
merely  to  collect,  epitomize  and  classify  under  appropriate  titles 
the  reported  adjudications,  but  to  probe  the  subject  to  its  core 
and  unfold  the  principles  which  it  involves  ;  to  show  not  only 
what  has  been  decided,  but  the  principles  of  those  decisions  ; 
to  lay  down,  if  we  can,  such  rules  as  will  enable  one  under 
any  given  state  of  circumstances  to  determine  when  a  wrong, 
as  slander  or  libel,  has  occurred,  when  a  remedy  may  properly 
be  sought  and  how  it  may  be  pursued  and  obtained.  To  accom- 
plish this  aim  we  shall  advert  to  some  elementary  principles, 
the  relevancy  of  which  may  not  at  once  be  apparent,  but  the 
reason  for  which  will  be  observed  as  we  proceed,  and  without  a 
reference  to  which  we  should  in  vain  attempt  to  make  ourselves 
or  our  subject  understood. 

§  15.  A  thorough  investigation  into  elementary  principles 
seems  peculiarly  necessary  in  treating  on  the  law  of  libel, 
because  it  is  a  branch  of  the  law  in  which,  perhaps,  more  than 
any  other,  principles  have,  from  various  causes,  been  most  sub- 
ject to  perversion  by  undue  influences,  have  been  less  scien- 
tifically treated  and  more  superficially  considered.  The  law  of 
libel  has  been  denounced  as  vague,  fluctuating  and  incompre- 
hensible. Of  the  decisions  on  the  subject  many  are  conflicting, 
more  are  scarcely  reconcilable,  and  the  reasoning  in  support 
of  all  is,  with  very  few  exceptions,  more  or  less  weak,  obscure, 
and  unsatisfactory.  It  has  almost  been  claimed  or  conceded 
that  there  is  something  so  subtle  in  the  principles  of  the  law 
of  libel  as  to  elude  detection,  and  the  law  of  libel  has  come  to 
be  regarded  as  a  parasitical  growth  on  the  main  body  of  the 
law,  presenting  features  so  exceptional  as  to  render  inapplicable 
those  general  principles  which  govern  other  branches  of  legal 
science.12     It  will  be  our  endeavor  to  show  that  properly  under- 


12  A  noted  peculiarity  of  the  law  of  libel  is  its  vagueness  and  uncertainty. 
(Encyc.  Brit.,  voce  libel.)  Holt,  writing  in  1816,  says :  "  It  is  indeed  in  the  very 
nature  of  the  subject  {The  Law  of  Libel)  that  it  is  extremely  difficult  to  clear  it 
of  those  popular  conceits  and  of  that  vagueness  of  generality  which  adhere  to  it 
as  a  question  of  political  discussion.     {Holt  on  Libel,  Preface.) 


SLANDER  AXD  LIBEL.  25 

stood  there  is  nothing  exceptional  in  the  wrongs  called  slander 
and  libel,  nor  in  the  legal  principles  applicable  to  those  wrongs, 
that  these  wrongs  are  governed  by  the  same  principles  which 
apply  to  all  other  wrongs,  and  that  there  is  nothing  in  the  law 
of  libel  itself  which  should  render  it  less  easy  to  comprehend 
than  any  other  division  of  jurisprudence. 

§  16.  While  profoundly  sensible  of  the  difficulty  properly  to 
execute  this,  our  self-imposed  task,  and  of  our  comparative 
inability  to  do  justice  to  the  subject,  we  nevertheless  flatter  our- 
selves that  we  shall  be  able  to  lay  before  our  readers  a  more 
systematic  outline  of  the  principles  of  the  law  of  libel  than  any 
which  has  hitherto  been  offered  or  attempted.13 

§  17.  Chief  among  the  difficulties  to  be  encountered  is  the 
combatting  many  of  the  existing  theories  and  ideas  on  the  sub- 
ject, most  of  them  coming  down  to  us  with  the  prestige  of  high 
authority,  hallowed  by  time  and  all  of  them  received  for  law. 
We  esteem  it  an  error  and  a  misfortune  that  among  text 
writers  on  legal  subjects  there  has  been  such  a  reverence  for 
precedent,  such  an  unquestioned  following  the  one  of  the  other, 
so  little  attempt  at  enlarged  and  connected  views  of  their  sub- 
jects in  their  principles  untrammeled  by  precedent,  rendering 
text  books  collections  of  materials  for  essays  rather  than  essays. 
For  ourselves,  we  brave  being  deemed  presumptuous,  in  the 
hope  that  we  may  be  useful,  and  where,  after  the  many  years  of 
patient  reflection  we  have  bestowed  upon  our  subject,  we  have 

13  "  Though  I  could  not  be  ignorant  either  of  the  difficulty  of  the  matter 
which  he  that  taketh  in  hand  shall  soon  find,  or  much  less  of  my  own  inability, 
which  I  had  continual  sense  and  feeling  of,  yet  because  I  had  more  means  of 
absolution  than  the  younger  sort,  and  more  leisure  than  the  greater  sort,  I  did 
think  it  not  impossible  to  work  some  profitable  effect,  the  rather  because  where 
an  inferior  wit  is  bent  and  conversant  upon  one  subject,  he  shall  many  times,  with 
patience  and  meditation,  dissolve  and  undo  many  knots,  which  a  greater  wit, 
distracted  with  many  matters,  would  rather  cut  in  two  than  unknit ;  and  at  the 
least,  if  my  invention  or  judgment  be  too  barren  or  too  weak,  yet,  by  the  benefit 
of  other  arts,  I  did  hope  to  dispose  or  digest  the  authorities  and  opinions  *  * 
in  such  order  and  method,  as  they  should  take  light  one  from  another,  though 
they  took  no  light  from  me."  {Bacon's  introduction  to  his  Pleading  on  the  Statute 
of  Uses.) 


26  SLANDER  AND  LIBEL. 

arrived  at  any  conclusions  which  conflict  with  existing  ideas  or 
decisions,  we  shall  be  deterred  neither  by  the  antiquity  of  the 
precedent,  nor  the  high  position  of  its  author,  nor  its  indorsers, 
from  expressing  our  dissent.  Besides  a  general  and  connected 
view  of  the  subject,  we  shall  study  to  present  a  faithful  record 
of  all  the  adjudged  decisions  and  dicta,  and  as  we  really  have 
no  pet  theory  to  maintain,  and  are  influenced  solely  by  the  de- 
sire to  elicit  the  true  principles  on  which  the  law  concerning 
our  subject  is  based,  we  shall  be  especially  careful  throughout 
to  distinguish  from  received  authorities  what  are  merely  our  in- 
ferences or  suggestions ;  and  we  promise  our  readers  most  reli- 
giously to  abstain  from  any  intentional  garbling  of  authority, 
or  the  willful  withholding  of  any  decision  or  dicta,  in  order  to 
support  any  particular  view  or  theory.  The  meagre  attempts 
heretofore  made  to  reduce  the  subject  into  any  systematic  form 
will  oblige  us,  to  a  considerable  extent,  to  treat  the  subject  as 
res  nova. 

§  18.  "We  have  divided  our  subject  into  two  principal  divis- 
ions— slander  and  libel.  Slander  and  libel  have  this  in  com- 
mon, that  each  may  be,  and  usually  is,  effected  by  means  of 
language.  As  we  have  described  them,  their  distinguishing 
feature  of  difference  is  that  the  one  is  effected  by  oral  language, 
the  other  by  written  language.  To  language  in  writing  is 
attributed  in  most  cases  a  greater  capacity  for  injury  than  is  at- 
tributed to  language  spoken  or  speech,  so  that  language  which, 
if  spoken,  gives  no  right  to  redress,  may,  if  reduced  to  writing, 
give  a  cause  of  action.14     It  is  proper  to  say  that  the  broad  dis- 


14  A  distinction  was  very  early  taken  in  the  Roman  law  between  slander  spoken 
and  written,  and  the  injuria  verbalis  was  deemed  to  constitute  a  much  lower  de- 
gTee  of  injury  than  the  malum  carmen  and  famoms  libellun.  (Holt  on  Libel,  N. 
Y.  Ed.  21.)  Holt  wrote  in  1816.  He  says,  p.  225 :  "  It  has  lately  become  a  ques- 
tion whether  there  be  any  difference  between  written  and  unwritten  slander;" 
and  then  he  refers  to  Bradley  v.  Methuen,  2  Ford's  MS.  78,  in  which  Lord  Hard- 
wicke  is  reported  to  have  said  that  courts  do  make  a  distinction  "  between  words 
written  and  bare  words."  In  Thorley's  case,  4  Taunt.  355,  the  question  was, 
Whether  an  action  would  lie  for  words  written,  when  such  action  would  not  lie 
for  them  if  spoken  ?  "  For  myself,"  said  Chief  Justice  Mansfield,  "  I  cannot,  upon 
principle,  make  any  difference  between  words  written  (as  to  the  right  which 


SLANDER  AND  LIBEL.  27 

tinction  we  have  drawn  between  slander  and  libel  is  not  one 
universally  adopted  ;15  indeed  it  is  not  the  one,  in  our  judgment, 
the  most  logically  correct ;  but  we  adopt  it  partly  in  deference 


arises  out  of  them  to  bring  an  action)  and  words  spoken ;  but  the  difference  has 
been  recognized  by  the  courts  for  at  least  a  century  backwards,  and  has  been 
established  by  Lords  Hardwicke,  Hale,  Holt,  and  others." 

This  species  of  defamation  [libel]  is  usually  called  written  scandal,  and  hereby 
receives  an  aggravation  in  that  it  is  presumed  to  have  been  entered  upon  with 
coolness  and  deliberation,  and  to  continue  longer,  and  to  propagate  wider  and 
farther  than  any  other  scandal.     (Bac.  Abr.) 

The  distinction  between  verbal  and  tor itten  slander  proceeds  upon  the  principle 
that  words  are  often  spoken  in  heat  upon  sudden  provocations,  and  are  Heeling 
and  soon  forgotten,  and  therefore  less  likely  to  be  permanently  injurious ;  while 
written  slander  is  more  deliberate  and  malicious,  more  capable  of  circulation  in 
distant  places,  and  consequently  more  likely  to  be  permanently  injurious.  (1 
Chit.  Gen.  Pr.  45.) 

The  great  distinction  between  libel  and  slander  is,  "  that  from  a  libel  damage 
is  always  implied  by  law,  whereas  some  kinds  of  slander  only  are  actionable 
without  proof  o!'  special  damage."     {Broom's  Comm.  p.  513  [762].) 

Words  written  and  published  may  be  actionable  which,  if  spoken,  would  not 
be  so  without  special  damage.  But  they  must  be  such  as,  in  the  common  esti- 
mation of  mankind,  are  calculated  to  reflect  shame  and  disgrace  upon  the  person 
concerning  whom  they  are  written,  or  hold  him  up  as  an  object  of  hatred,  ridi- 
cule and  contempt.  (Fonville  v.  Kease,  Dudley,  S.  C.  303.)  As  to  what  is  libel- 
ous, and  as  to  the  distinction  between  libel  and  slander.  (Rice  v.  Simmons,  2 
Harriug.  417;  Layton  v.  Harris,  3  Harring.  406.)  Vox  emissa  volet,  litera 
scripta  manet.  (Beebe  v.  Bank  of  N.  Y.,  1  Johns.  529,  571.)  Scribere  est  agere. 
{The  PeopleY.  Rathbun,  21  Wend.  509-540.) 

There  was  something  superstitious  in  the  horror  with  which  the  Icelanders 
regarded  a  libel,  and  no  offence  among  them  was  more  surely  or  bloodily  avenged 
than  the  publication  of  satirical  verses,  or  the  setting  up  of  a  Nid — that  is,  an  in- 
sulting or  indecent  figure,  or  a  horse's  head  on  a  pole  on  the  lands  of  another. 
(See  "  The  Story  of  Burnt  Njal ;  or,  Life  in  Iceland  at  the  End  of  the  Tenth  Cen- 
tury." By  George  W.  Dasent,  D.  C.  S.)  It  is  a  marked  trait  in  the  character  of 
the  Russian  people  to  "  feel  corporeal  punishment  less  sensibly  than  a  verbal  in- 
sult. This  idea  has  a  religious  foundation;  a  good  Christian  cannot  admit  that 
the  punishment  of  fustigation  which  has  been  inflicted  on  the  Saviour  of  human- 
ity can  be  for  a  man  a  stain  of  infamy;  he  believes  that  a  verbal  insult  aiiects 
the  immortal  part  of  man,  whereas  a  blow  only  produces  suffering  in  the  least 
noble  part  of  his  being."  (Essai  sur  l'Histoire  tie  la  Civilization  en  Russie.  Par 
Nicolas  de  Gcrebtzoff.  Paris,  1858,  vol.  2,  p.  575.  Westminster  Review,  Janu- 
ary, 1864 — Art.  Russia.) 

1S  It  does  not  apply  to  the  wrong  called  slander  of  title,  nor  to  language  affect- 
ing one  in  his  calling  or  office,  nor  to  proceedings  in  the  ecclesiastical  courts.    As 


28  SLANDER  AND  LIBEL. 

to  a  very  prevalent  use  of  the  terms  slander  and  libel,  to  dis- 
tinguish between  an  injury  by  speech  and  an  injury  by  writing, 
and  partly  because  by  this  arrangement  one  word  suffices  to  de- 
note to  which  particular  branch  of  the  subject  we  refer.  In 
our  opinion,  the  more  logical  arrangement  would  be  to  take 
slander  or  defamation  as  the  generic  term,  and  then  indicate 
the  division  by  the  epithets  oral  and  written.  There  are,  how- 
ever, objections  to  this  division — among  others,  that  it  omits 
effigy.  Another  mode  of  dividing  the  subject  is  to  take  libel 
for  the  generic  term,  and  then  distinguish  the  kind  by  the  epi- 
thets  defamatory,  seditious,   &c.16     This   is   objectionable   on 


to  this  last  see  Ware  v,  Johnson,  2  Sir  Geo.  Lees  Cases  in  Eccles.  Courts,  103. 
Holt  says,  p.  211  N.  Y.  Edit. :  "  It  is  evident,  moreover,  from  the  authorities  that 
words  written  of  a  man  tending  to  disparage  him  in  his  profession  will  support 
an  action,  although  the  same  words  when  spoken  will  not ;"  and  he  refers  to 
King  v.  Lake,  Ilardres,  4*71 ;  but  that  case  does  not  authorize  any  such  doctrine. 

16  Blackstone  speaks  of  blasphemous,  immoral,  treasonable,  schismatical,  sedi- 
tious or  scandalous  libels.  (4  Bl.  Comm.  ch.  xi.)  And  Lord  Bolingbroke,  writing 
to  Queen  Anne,  Oct.  17th,  1711,  says:  "I  have  discovered  the  author  cf  another 
scandalous  libel,  who  will  be  in  custody  this  afternoon;  he  will  make  the  thir- 
teenth I  have  seized  and  the  fifteenth  I  have  found  out."  In  Borthwick  on  Libel, 
25,  note,  it  is  said:  His  Lordship  seems  to  have  retained  the  adjective  [infa- 
mous] in  reference  to  the  usual  meaning  of  the  word  libel,  when  not  qualified,  in 
the  law  of  Scotland,  which  is  the  same  [meaning]  as  it  still  has  in  the  spiritual 
courts  of  England.  It  would  appear,  however,  that,  even  in  the  courts  of  com- 
mon law  in  England,  (here  was  formerly  some  doubt  whether  libel,  or  libellus,  by 
itself,  was  the  proper  technical  expression.  This  we  learn  from  a  note  («.  p.  4) 
in  the  "  Digest  of  the  Law  Concerning  Libels."  "  Lord  Chief  Justice  Raymond," 
says  the  author,  "  in  Curl's  case,  said  that  he  did  not  think  that  libellus  was 
always  to  be  taken  as  a  technical  word,  and  asked  whether  action  would  lie  de 
quodam  libello  intitulat — the  New  Testament — and  whether  the  spiritual  court  did 
not  proceed  upon  a  libel  ?  Mr.  Justice  Forteseue  said  a  libel  was  a  technical 
word  at  common  law.  Mr.  Justice  Reynolds  said  that  libellus  did  not,  ex  vi  ter- 
mini, import  defamation,  but  was  to  be  governed  by  the  epithet  added  to  it." 
2  Stra.  791. 

In  Thorley's  case,  4  Taunt.  355,  the  expression  "written  and  unwritten  slan- 
der" is  used. 

Mr.  Heard,  in  his  treatise  on  libel  and  slander,  §  8,  uses  the  phrase  "actiona- 
ble libel."  This  implies  that  there  may  be  a  libel  which  is  not  actionable.  He 
also  uses  the  phrase  printed  libel.  In  the  index  to  the  same  treatise  is  the  phrase 
"  ironical  libel." 

The  Encyclopedic  Brittannicas,  voce  Libel, uses  the  phrase  "  defamatory  libel;" 


SLANDER  AND  LIBEL.  29 

many  grounds.  Upon  the  whole,  we  conclude  that  the  division 
we  have  adopted  will  be  found  obnoxious  to  as  few  objections, 
and  be  more  convenient,  than  any  other  we  could  have  selected. 
In  describing  the  matter  of  a  slander  or  libel — that  is,  the  speech 
or  writing  which  may  or  may  not  constitute  a  slander  or  a  libel, 
but  which  is  charged  to  be  a  slander  or  libel — we  shall  designate 
it  speech  or  writing,  as  the  matter  of  slander  or  libel  may  be 
intended,  but  generally,  and  where  both  slander  and  libel  are 
used,  shall  employ  the  term  language  or  defamatory  matter. 
Neither  judges,  advocates,  nor  text  writers  confine  themselves 
to  the  terms  slander  and  libel,  but  employ  the  terms  libel,  slan- 
der, scandal,  calumny,  defamation,  detraction,  verbal  injury, 
and  some  others,  without  any  accord  as  to,  and  with  very  little 
regard  for,  their  definitions  or  connotations.  We  shall  confine 
ourselves  throughout  to  the  terms  slander  and  libel,  and  employ 
them  as  distinct  terms  and  as  marking  the  division  between  an 
offence  by  means  of  speech  and  an  offence  by  means  of  writing 
or  effigy ;  but  in  using  the  phrase  law  of  libel,  we  desire,  noth- 

and  the  statute,  6  and  7  A'ict.,  ch.  96,  uses  the  term  "  defamatory  words  and  libel" 
in  lieu  of  "  slander  and  libel/' 

"  The  high  court  of  the  Paris  Parliament  commenced  a  prosecution  against 
him  for  libellous  defamation."  Westminster  Review,  July,  1860;  Art.  The  French 
Press,  page  118,  Am.  Reprint. 

"Mr.  J.  Mackenzie's  Narrative,  a  false  libel,  a  defence  of  Mr.  G.  Walker,  &c, 
1690,"  is  the  title  of  a  pamphlet  published  in  1690.  And  the  phrase  "false  slan- 
der" is  used;  Finch's  Law,  185. 

In  an  ordinance  agreed  to  by  both  Houses  of  the  English  Parliament,  30th 
September,  1647,  the  word  libel  seem  to  be  used  in  the  sense  of  a  book  or  pam- 
phlet. The  ordinance  runs  thus:  "That  what  person  so  ever  shall  make,  write, 
print,  publish,  sell  or  utter  any  book,  pamphlet,  treatise,  ballad,  libel,  or  sheet  of 
news  whatsoever,  or  cause  so  to  be  done,  except  the  same  be  licensed  by  both  or 
either  House  of  Parliament,"  tfce.  The  word  libel  cannot  here  mean  a  defamatory 
publication,  as  it  is  not  to  be  supposed  the  Parliament  would  in  any  case  license 
a  defamatory  publication. 

Sometimes  any  unfair  statement  is  called  a  libel,  and  we  say  it  is  a  libel  on 
humanity,  on  the  goodness  of  God,  Ac. 

The  phrase,  "action  for  words,"  might  seem  to  be  always,  as  it  generally  is, 
employed  by  the  English  lawyers,  in  reference  to  words  spoken  alone.  This, 
however,  is  not  the  case.  Thus,  Mr.  Tomlins,  in  his  Law  Dictionary  (voce  Action 
II.  §  1),  says:  "Action  on  the  case  for  words  ;  which  is  brought  for  words  spoken 
or  written."  This  passage  may  be  remarked  as  another  instance  of  the  varied 
meaning  ot  legal  phrases.     (Borlhwick  Libel,  v.  22,  note.) 


30  SLANDER   AND   LIBEL. 

ing  being  said  to  the  contrary,  to  be  understood  as  meaning  and 
including  as  well  the  law  applicable  to  what  we  call  slander  as 
to  what  we  call  libel. 

§  19.  From  some  cause — perhaps  from  the  fact  that  language 
in  writing  may  amount  to  a  public  wrong — it  has  happened 
that  the  wrong  occasioned  by  writing  (libel)  has  occupied  a 
larger  share  of  attention  than  has  the  wrong  occasioned  by 
speech  (slander).  Whether  this  is  sufficient  to  account  for  the 
circumstance  or  not,  these  facts  remain,  that  while  it  is  common 
to  speak  of  the  law  of  libel,  it  is  quite  uncommon  to  speak  of 
the  law  of  slander ;  and  while  ingenuity  has  been  tortured  to 
frame  a  definition  of  libel  or  a  libel,  scarcely  any  attempts  have 
been  made  to  frame  a  definition  of  slander  or  a  slander. 

§  20.  The  attempts  which  have  been  made  to  define  libel  or 
"  a  libel  "  are  so  many  as  to  be  almost  innumerable,  yet  they 
have  in  reality  been  unavailing ;  no  definition,  properly  so 
called,  of  libel  or  a  libel  exists."     The  term  libel  being  conno- 

11  "  It  is  to  be  observed  that  no  correct,  no  logical  definition  of  a  libel  has 
ever  been  given."     {George  on  Libel,  14.) 

Lord  Brougham,  in  answer  to  the  question  how  far  it  was  possible  to  define 
the  law  of  libel  said :  "  It  is  a  subject  to  which  I  have  paid  considerable  atten- 
tion, but  I  must  freely  own  without  any  success  whatever.  I  hold  it  to  be  hardly 
possible  to  define  libels  by  which  guilt  may  be  incurred  as  tending  to  a  breach 
of  the  peace,  to  other  proceedings  of  a  violent  nature,  *  *  and  to  a  variety 
of  other  heads.  *  *  *  *  Any  definitions  that  I  have  ever  seen 
given  had  one  5r  other  of  two  faults,  *  *  *  they  were  either  so 
vague  as  not  to  specify  or  define  anything,  or  *  *  they  were  only  ren- 
dered particular  and  definite  by  omitting  some  species  of  libel  *  *  * 
which  ought  to  have  been  comprehended.  *  *  *  I  have  never  yet 
seen,  or  been  able  myself  to  hit  upon  anything  like  a  definition  of  libel  *  * 
which  possessed  the  recpiisites  of  a  definition,  and  I  cannot  help  thinking 
that  the  difficulty  is  not  accidental,  but  essentially  inherent  in  the  nature  of  the 
subject.  *  *  *  The  latin  of  libel  is  not  libellm  but  Ubellus  famosus. 
*  *  Libel  then  means,  in  its  original,  not  "little  book"  but  "a  defama- 
tory little  book."  *  *  *  Libel  is  an  offence  of  a  somewhat  vague 
description,  but  sufficiently  known  in  law,  and  perhaps  as  well  defined  as  assault 
and  some  others,  and  I  do  not  believe,  from  all  the  experience  I  have  had,  that 
in  practice  any  considerable  difficulty  is  felt  on  account  of  its  indistinctness. 
{Report  of  House  of  Lords  on  defamation  and  libel,  July,  1843.) 

At  Rome  the  cards  of  the  races  with  the  names  and  colors  of  the  riders  and 
drivers  were  called  libelli. 


SLANDER  AND  LIBEL.  31 

tative,  its  definition  to  be  complete  should  unfold  the  whole 
meaning  it  involves,  the  whole  of  what  is  connoted ;  should 
"  select  from  among  the  whole  of  its  properties  those  which 
shall  be  understood  to  be  designated  and  declared  by  its  name  ;" 
"  those  which  unfold  its  nature,  which  are  peculiar  to  it  and 
which  are  not  found  in  a  like  combination  elsewhere."  This 
describes  a  real  definition  of  the  kind  called  essential,  and  before 
we  can  frame  such  a  definition  we  must  know  all  the  proper- 
ties of  our  subject,  and  then  select  those  proper  for  the  pur- 
pose. As  a  libel  comprehends  a  complex  aggregate  of  partic- 
nlars  either  not  all  known  or  not  all  agreed  upon,  it  may  be 
impossible  to  circumscribe  them  by  a  correct  and  compact  gen- 
eral description. 

§  21.  The  definitions  which  have  been  attempted  have  been 
framed  as  supposed  standards  by  which  to  determine  of  any 
given  proposition  whether  or  not  it  constitutes  a  libel ;  and 
experience  demonstrating  the  total  worthlessness  for  any  prac- 
tical purposes  of  these  supposed  definitions  it  has  come  to  be 
taken  for  granted,  at  least  by  some,  that  there  is  that  inherent 
in  the  subject  which  prevents  the  possibility  of  its  definition. 
This,  although  imputed  to  libel  as  a  peculiarity,  is  not  so  in 
fact,  the  like  difficulty  attaches  to  many  other  terms  and  particu- 
larly to  every  other  wrong.  An  attempt  to  frame  a  concise, 
real,  essential  definition  of  any  other  wrong  will  disclose  the 
like  difficulties  as  occur  in  the  case  of  libel.1 

19  As  Cousin  said,  when  asked  to  state  in  a  single  sentence  the  spirit  of  Ger- 
man philosophy,  "  These  things  do  not  sum  themselves  up  in  single  sentences." 
We  subjoin  some  specimens  of  the  attempts  to  define  libel : 
It  is  not  infamous  matter  or  words  which  make  a  libel ;  for,  if  a  man  speak 
such  words,  unless  they  are  written,  he  is  not  guilty  of  the  making  of  a  libel ; 
writing  is  of  the  essence  of  a  libel.  (Ld.  Raym.  416.)  In  order  to  constitute  a 
libel,  the  subject-matter  complained  of  must  be  a  subject  of  visible  perception. 
But,  provided  only  it  be  an  object  of  visible  perception,  a  libel  does  not  appear 
to  be  confined  to  any  particular  form  or  shape.  By  the  requisite,  which  i3  essen- 
tial to  the  existence  of  a  libel,  that  it  be  an  object  of  visible  perception,  libel  is 
distinguished  from  what  is  technically  called  defamation  or  spoken  slander. 
Again,  "  The  words  most  nearly  synonymous  to  the  word  libelling,  are  defaming, 
disparaging,  aspersing,  slandering"     {George  on  Libel,  p.  35,  36,  11.) 

"  A  libel  is  a  contumely  or  reproach,  published  to  the  defamation  of  the  gov- 
ernment, of  a  magistrate,  or  of  a  private  person."     {Comyn's  Digest.) 


32  SLANDER  AND  LIBEL. 

§  22.  It  is  rare,  indeed,  that  we  can  frame  a  real,  essential 
definition,  but  by  a  definition  is  sometimes  understood  such  an 
explanation  of  a  given  term  as  conve}Ts  an  idea  of  its  connota- 


A  libel  is  a  malicious  publication  tending  to  the  disrepute  of  an  individual, 
the  breach  of  the  peace,  the  seditious  violation  of  the  good  order  of  government. 
(Capel  Loft's  Essay  on  Libels,  edit.  1785,  p.  6.) 

The  American  Encyclopedia,  voce  Libel,  refers  to  the  following  definition  of 
libel  as  the  best  definition :  "  A  libel  is  any  published  defamation."  And  the 
same  article  states  the  difference  between  libel  and  slander  to  consist  in  this,  that 
libel  is  published  defamation,  and  slander  is  spoken  defamation.  This  seems  to 
ignore  an  oral  publication. 

Written  defamation  is  otherwise  termed  libel,  and  oral  defamation  slander. 
(Burrell,  Law  Diet.) 

Defamatory  words,  written  and  published,  constitute  a  libel.    {Maunder.) 

Libel,  a  word  which  has  many  different  meanings,  but  is  chiefly  known  in 
this  country  as  the  name  of  a  department  of  the  law  which,  from  incidental  cir- 
cumstances, has  come  to  include  the  naturally  distinct  heads  of  written  slander, 
sedition,  and  outrage  against  religion.     (Encyc.  Brit,  voce  Libel.) 

A  libel  has  been  usually  treated  of  as  scandal,  written  or  expressed  by  sym- 
bols. Libel  may  be  said  to  be  a  technical  word  deriving  its  meaning  rather  from 
its  use  than  its  etymology.  (Bussell's  Treatise  of  Crimes  and  Misdemeanors,. 
edit.  1819,  p.  308.) 

In  a  strict  sense  it  [libel]  is  taken  for  a  malicious  defamation,  expressed  either 
in  printing  or  writing ;  in  a  larger  sense,  the  notion  of  libel  may  be  applied  to 
any  defamation  whatsoever,  expressed  either  by  signs  or  pictures,  as  b}T  affixing 
up  a  gallows  at  a  man's  door,  or  by  painting  him  in  a  shameful  and  ignominious 
manner.     {Hawkins  PI.  Cr.) 

Libell,  a  criminous  report  of  any  man  cast  abroad  or  otherwise  unlawfully 
published  in  writing,  but  then,  for  difference  sake,  it  is  called  an  infamous  libel — 
famosus  libellus.     (Minshcei,  A  Guide  into  the  Tongues,  &c,  London,  1627.) 

Written  or  printed  slanders  are  libels.     (Bouvier.) 

"All  publications  injurious  to  private  character  or  credit  of  another  are 
libellous."  Addison  on  Wrongs — referred  to  as  a  good  definition,  McXally  v.  Old- 
ham, 8  Law  Times,  Rep.  N.  S.  604. 

"  A  libel  is  anything  of  which  any  one  thinks  proper  to  complain."  Essay 
prefixed  to  report  of  Finnerty's  Trial ;  supposed  to  be  from  Jeremy  Bentham's 
Writings.  It  is  also  quoted  thus:  "  A  libel  is  anything  published  upon  any  mat- 
ter of  anybody,  which  any  one  was  pleased  to  dislike."  Attributed  to  Bent- 
ham,  cited  in  pamphlet,  trial  of  David  Lee  Child. 

A  libel  is  a  censorious  or  ridiculing  writing,  picture,  or  sign,  made  with  a 
mischievous  and  malicious  intent  towards  government,  magistrates,  or  individuals. 
(Per  Hamilton,  arg.  People  v.  Crosswell,  3  Johns.  C.  354;  adopted,  Steele  v.  South- 
wick,  9  Johns.  214;   Cooper  v.  Greeley,  1  Den.  347.) 

A  libel  is  a  malicious  publication  expressed  either  in  printing  or  writing,  or 
by  signs  and  pictures,  tending  either  to  blacken  the  memory  of  one  dead,  or  the 


SLANDER  AND  LIBEL.  33 

tion  and  enables  us  to  distinguish  it  from,  and  prevents  our  con- 
founding it  with,  any  other  term  of  a  similar  but  not  the  same 
import.     "When  we  employ  definition  in  this  sense  and  for  this 

reputation  of  one  who  is  alive,  and  expose  him  to  public  hatred,  contempt,  or  rid- 
icule.    (Per  Ch.  J.  Parsons,  quoted  in  Root  v.  King,  7  Cow.  613.) 

A  libel  is  a  malicious  publication  in  printing,  writing,  signs,  or  pictures,  im- 
puting to  another  something  which  has  a  tendency  to  injure  his  reputation  ;  to 
disgrace  or  to  degrade  him  in  society,  and  lower  him  in  the  esteem  and  the 
opinion  of  the  world,  or  to  bring  him  into  public  hatred,  contempt,  or  ridicule. 
{State  v.  Jeandell,  5  Harring.  [Del.]  475.) 

Everything  written  of  another,  holding  him  up  to  scorn  and  ridicule,  and  cal- 
culated to  provoke  a  breach  of  the  peace,  is  a  libel.  {Torrance  v.  Hurst,  Walker, 
403 ;  Newbraugh  v.  Curry,  Wright,  47.) 

Every  publication  by  writing,  printing,  or  painting,  which  charges  or  imputes 
to  any  person  that  which  renders  him  liable  to  punishment,  or  which  is  calcu- 
lated to  make  him  infamous,  odious,  or  ridiculous,  is,  prima  facie,  a  libel,  and 
implies  malice  in  the  publisher.     (  White  v.  Nicholls,  3  How.  U.  S.  266.) 

A  publication,  to  be  a  libel,  must  tend  to  injure  the  plaintiff's  reputation,  and 
expose  him  to  public  hatred,  contempt  and  ridicule.  {Armentrout  v.  Moranda  8 
Blackf.  426.) 

Any  publication,  the  tendency  of  which  is  to  degrade  and  injure  another  per- 
son, or  to  bring  him  into  contempt,  hatred,  or  ridicule,  or  which  accuses  him  of 
a  crime  punishable  by  law,  or  of  an  act  odious  and  disgraceful  in  society,  is  a 
libel.     {Dexter  v.  Spear,  4  Mason,  115.) 

A  libel  is  a  malicious  publication  expressed  either  in  printing  or  writing,  or 
by  signs  and  pictures,  tending  either  to  blacken  the  memory  of  one  dead,  or  the 
reputation  of  one  who  is  alive,  and  expose  him  to  public  hatred,  contempt,  or 
ridicule.     {Commonwealth  v.  Clapp,  4  Mass.  163,  168.) 

A  libel  is  a  censorious  or  ridiculing  writing,  picture,  or  sign,  made  with  a 
mischievous  intent.     {The  State  v.  Farley,  4  M'Cord,  317.) 

A  publication  is  a  libel  which  tends  to  injure  one's  reputation  in  the  common 
estimation  of  mankind,  to  throw  contumely  or  reflect  shame  and  disgrace  upon 
him,  or  hold  him  up  as  an  object  of  hatred,  scorn,  ridicule  and  contempt, 
although  it  imputes  no  crime  liable  to  be  punished  with  infamy,  or  to  prejudice 
him  in  his  employment.  So  every  publication  by  writing,  printing,  or  paintmo-, 
which  charges  or  imputes  to  any  person  that  which  renders  him  liable  to  punish- 
ment, or  which  is  calculated  to  make  him  infamous  or  odious  or  ridiculous  is 
prima  facie,  a  libel.     (1  Milliard  on  Torts,  ch.  vii.  §  13.) 

Holt  in  his  treatise,  p.  213  [223],  defines  libel  as  against  private  persons  thus: 
"  Everything,  therefore,  written  of  another  which  holds  him  up  to  scorn  and  rid- 
icule, that  might  reasonably  (that  is  according  to  our  natural  passions)  be  consid- 
ered as  provoking  him  to  a  breach  of  the  peace,  is  a  libel."  Mr.  Mence  {Law  of 
Libel,  vol.  1,  p.  120),  referring  to  this  passage  in  Holt,  says :  "  This  agrees  with  his 
two  preceding  definitions,  and  with  the  common  acceptation  of  the  term  libel,  by 
making  it  essential  that  the  subject  or  object  of  the  attack  should  be  some  person 

3 


34:  SLANDER  AND  LIBEL. 

purpose  merely,  it  ceases  to  be  important  whether  the  definition 
adopted  be  strictly  accurate.  If  we  always  employ  the  term  in 
that  one  predetermined  sense,  it  serves  to  avoid  confusion  and 

or  persons  ;  but  it  disagrees  with  them,  by  introducing  the  tendency  to  provoke 
a  breach  of  the  peace.  It  follows  that,  if  this  be  a  correct  definition,  the  other 
two  must  be  defective,  because,  in  one  of  them,  the  tendency  or  (as  is  there  said) 
the  intent  to  provoke  is  required  only  in  cases  where  the  object  of  the  slander  is 
a  deceased  person,  and  in  that  from  Lord  Coke  it  is  wholly  omitted.  On  the 
other  hand,  if  the  two  former  definitions  be  correct,  the  third  must  necessarily  be 
inaccurate,  for  an  accurate  definition  is  one  which  neither  omits  what  is  essential 
nor  admits  what  is  superfluous.  *  *  *  And  it  is  to  be  further  observed 
that  the  third  definition  disagrees  with  the  two  former  and  the  common  accept- 
ation of  the  term  libel,  not  only  by  introducing  the  intent  or  the  tendency  to 
provoke,  but  by  leaving  out  the  falsehood  and  malice.  For  libel,  in  common 
acceptation,  signifies  written  slander ;  and  the  term  slander  and  all  its  synonyms, 
as  defamation,  detraction,  calumny,  even  without  the  epithets  malicious  and 
injurious,  imply  falsehood  and  malice." 

"  The  familiar  acceptation  of  the  word  libel  is  no  less  simple  and  intelligible 
[than  the  term  horse-stealing],  but  the  legal  and  technical  use  is  as  if  horsesteal- 
ing stood  not  only  for  stealing  a  horse  but  for  murder,  arson,  larceny,  and  other 
crimes  more  or  less  atrocious ;  and  even  for  actions  not  criminal,  or  of  which  the 
criminality  is  at  least  doubtful  and  not  to  be  measured  or  ascertained  till  we  have 
separated  them  from  the  greater  crimes  with  which  they  are  confounded.  This 
perverse  and  cabalistic  use  of  language  it  is  that  has  given  birth  to  so  much  of 
the  obscurity  with  which  the  law  of  libel  is  reproached.  And  nothing  can  be 
easier  than  to  reform  it.  We  have  only  to  consider  written  challenges  to  fight  as 
a  class  by  themselves ;  to  class  blasphemous  writings  under  the  head  of  blas- 
phemy ;  obscene  and  grossly  indecent  or  immoral  writings  under  the  head  of 
obscenity ;  or  both  these  heads,  together,  under  that  of  offences  immediately 
against  God;  seditious  writings  under  the  head  of  sedition;  and  all  other  writ- 
ings denominated  libels  under  the  two  distinct  heads  of  libels  and  censure,  as  they 
are  either  tainted  with  falsehood  and  malice,  or  criminal  by  carrying  upon  them 
the  manifest  intent  to  provoke  a  breach  of  the  peace,  or  by  having  a  tendency, 
or  of  being  merely  suspected  of  having  a  tendency,  so  to  do."  And  on  page  181 
he  says,  "  This  is  blasphemy  under  the  title  of  libel  upon  the  Christian  religion, 
classed  or  confounded,  as  is  obscenity  also  with  crimes  (if  crimes  they  be),  from 
which  it  differs  as  much  both  in  kind  and  degree  as  murder  does  from  picking  a 
pocket  or  robbing  a  hen-roost."     (1  Mence  on  Libel,  125.) 

In  several  of  the  States,  libel  has  been  defined  by  statute.  Thus,  in  Maine, 
it  is  enacted  that  "  a  libel  shall  be  construed  to  be  the  malicious  defamation  of  a 
person,  made  public  either  by  any  printing,  writing,  sign,  picture,  representation, 
or  effigy,  tending  to  provoke  him  to  wrath,  or  expose  him  to  public  hatred,  con- 
tempt, or  ridicule,  or  to  deprive  him  of  the  benefits  of  public  confidence  and 
social  intercourse ;  or  any  malicious  defamation,  made  public  as  aforesaid, 
designed  to  blacken  and  vilify  the  memory  of  one  that  is  dead,  and  tending  to 


SLANDER  AND  LIBEL.  35 

enables  us  to  reason  upon  it  with  certainty.  Mathematical 
science  is  certain,  not  because  its  definitions  are  true,  but  be- 
cause they  are  certain ;  and  legal  science  is  only  uncertain  be- 
cause its  definitions  are  uncertain.19  We  may  ensure  certainty 
by  having  definitions  which,  however  defective  in  other  respects, 
at  least  admit  of  our  using  the  terms  defined  always  in  one  and 
the  same  sense  and  always  so  using  them.  "We  shall  not  attempt 
to  construct  real  definitions  of  slander  and  libel,  but  to  definitely 
mark  what  is  meant  when  those  terms  are  employed.  We  de- 
fine slander  and  libel  as  wrongs  occasioned  by  language  or  effigy 
— that  is  to  say,  slander  is  a  wrong  occasioned  by  speech,  and 
libel  is  a  wrong  occasioned  by  writing  or  effigy. 

scandalize  or  provoke  his  surviving  relatives  or  friends."  And  in  Illinois  it  is 
enacted,  "  a  libel  is  a  malicious  defamation,  expressed  either  by  printing  or  by 
signs,  or  the  like  tending  to  blacken  the  memory  of  one  who  is  dead,  or  to  im- 
peach the  honesty,  integrity,  virtue  or  reputation,  or  publish  the  natural  defects 
of  one  who  is  alive,  and  thereby  to  expose  him  or  her  to  public  hatred,  contempt, 
or  ridicule."  Definitions  of  the  like  import  are  to  be  found  in  the  statute  books 
of  some  other  States. 

See,  Maine  Rev.  Stat.,  1840,  ch.  165,  §  1  ;  lozoa  Rev.  Code  of  1851,  ch.  151,  art. 
2767;  Arkansas  Rev.  Stat.,  1837,  div.  8,  ch.  44,  art.  2,  §  1,  p.  280;  Georgia, 
Prince's  Dig.,  pp.  643,  644 ;  Hotchk.  Dig.,  p.  739 ;  Cobb's  Dig.,  vol.  2,  p.  812 ; 
California  Stat.,  1850,  ch.  99,  §  120;  Illinois  Rev.  Slat.,  1845,  Crim.  Code,  §  120. 

19  "Mathematics  will,  in  no  greater  degree  than  theology  or  metaphysics,  give 
us  'certainty  by  rigid  demonstration'  without  the  assumption  of  those  primary 
truths  which  we  accept,  because  we  are  so  constituted  that  we  must  accept  them." 
Westminster  Review,  October,  1864;  art.  Dr.  Newman's  Apologia.  The  ques- 
tion What  is  the  foundation  of  mathematical  demonstration?  was  discussed  by 
Dugald  Stewart,  and  the  conclusion  at  which  he  arrived  was  that  the  certainty 
of  mathematical  reasoning  arose  from  its  depending  on  definitions.  And  further, 
that  mathematical  truth  is  hypothetical ;  if  the  definitions  are  assumed,  the  con- 
clusion follows.  Mr.  Whewell  controverts  these  views.  See  "  The  Mechanical 
Euclid,"  <fcc.,and  Remarks  on  Mathematical  Reasoning,  tfec,  by  the  Rev.  W.  Whe- 
well, M.  A.,  and  Edinburgh  Review,  April,  1838. 

"  Nothing  is  harder  than  a  definition.  While  on  the  one  hand  there  is  for  the 
most  part  no  easier  task  than  to  detect  a  fault  or  flaw  in  the  definition  of  those 
who  have  gone  before  us,  nothing  on  the  other  hand  is  more  difficult  than  to  pro- 
pose one  of  our  own  which  shall  not  also  present  a  vulnerable  side."  Dean 
Trench.     See  Burrill's  Law  Diet.,  voce  Definition,  and  2  Wooddes.  Lect.,  196. 


CHAPTER  II. 

HOW  ONE  MAY  AFFECT  ANOTHER  BY  LANGUAGE. 

Language  can  have  no  effect  unless  published.  It  must  be  true 
or  false,  commendatory  or  discomnwndalory.  Must  con- 
cern a  person  or  thing.  Its  effect,  direct  or  indirect,  or  both. 
Reputation. 

§  23.  Language  may  exist  as  mere  thought,  but,  before  it  can 
have  any  effect  extra  the  individual  with  or  in  whom  it  origin- 
ated, it  must  be  expressed ;  it  must  come  into  existence  as  an 
expression,  by  sound,  as  in  speech,  or  by  sign,  as  in  writing  or 
effigy  ;  and  not  only  must  it  be  expressed,  it  must  also  he  pub- 
lished— that  is,  communicated  by  the  individual  with  or  in 
whom  it  originated  to  some  other. 

§  24.  Language  when  employed  to  communicate  ideas  must 
assume  the  form  of  a  proposition  or  a  series  of  propositions  ;  by 
a  proposition  being  meant  "  discourse  which  affirms  or  denies 
something  of  some  person  or  thing,  the  subject  of  the  proposi- 
tion." Every  proposition  is  an  assertion,  and  must  be  either 
true  or  false — that  is,  it  must  assert  of  its  subject  that  which  is 
true,  or  that  which  is  false,  and  the  assertion  may  be  either  of 
commendation  or  discommendation. 

§  25.  Language  must  concern  either  a  person  or  a  thing,  or 
both,  and  it  may  concern  a  person  in  his  individual  and  natural 
capacity  merely,  or  in  some  acquired  or  artificial  relation  or 
capacity  as  a  trader,  an  office-holder,  or  as  the  author,  owner, 
or  possessor  of  some  certain  thing. 

§  26.  The  effect  of  the  publication  of  language  upon  a  per- 
son, other  than  the  author  or  publisher  of  the  language,  must  be 
direct  or  indirect,  or  both. 

§  27.  Language  cannot  directly  affect  a  thing ;  whatever 
direct  effect  it  can  have  must  be  upon  a  person. 


EFFECT  OF  LANGUAGE.  37 

§  28.  Language,  whether  it  concerns  a  person  or  a  thing, 
may  have  a  direct  effect  upon  the  person  to  whom  it  is  pub- 
lished, but  upon  none  other.  It  may  directly  affect  the  feelings, 
health,  belief,  or  opinion  of  him  to  whom  it  is  published,  and 
it  may  influence  or  excite  him  towards  a  particular  course  of 
action  or  forbearance  by  himself,  or  in  respect  of  himself  or  his 
affairs,  or  in  respect  to  some  other  person  or  some  thing,  or  the 
affairs  of  some  other  person.  It  may  either  please  or  displease 
him,  or  cause  him  to  feel  pleased  or  displeased  with  some  other 
person  or  thing,  or  cause  him  to  do  some  act  or  to  abstain  or 
resolve  to  abstain  from  doing  some  act  to  the  advantage  or  dis- 
advantage of  himself  or  some  other,  or  cause  him  to  think  bet- 
ter or  worse  of  himself  or  of  some  other  person  or  some  thing. 
That  other  person  may  be  either  he  who  makes  the  communi- 
cation or  he  whom  the  language  concerns.  All  the  direct  effects 
of  the  publication  of  language  are  personal  to  the  individual  to 
whom  the  publication  is  made,  and  can  extend  no  further.  The 
publication  of  language  can  have  no  direct  effects  other  than 
those  we  have  enumerated ;  whatever  other  effects  may  result 
from  the  publication  of  language  must  be  mdirect  or  consequent 
upon  one  or  other  or  some  of  these  enumerated  direct  effects. 

§  29.  The  kind  of  effect  produced,  i.  e.,  the  direct  or  indirect 
effect,  must  be  the  same  whether  the  publication  be  by  sound 
(speech),  or  by  sign  (writing  or  effigy),  but  the  mode  of  publica- 
tion may  affect  the  amount  of  effect  produced. 

§  30.  It  is  scarcely  supposable  that  the  publication  of 
language  which  concerns  another  or  his  affairs  can  produce  no 
direct  effect,  but  it  is  easy  to  suppose  that  it  may  not  produce 
any  indirect  effect.  The  publication  may  occasion  a  resolve  (a 
direct  effect),  and  that  resolve  may  never  be  put  into  execution 
(produce  no  indirect  effect),  or  it  may  occasion  a  change  in  the 
opinion  entertained  of  another,  and  that  other  may  never  be 
otherwise  in  any  the  least  degree  affected  by  that  change  of 
opinion.  The  change  of  opinion  may  not  prevent  or  occasion 
any  action  different  from  what  would  otherwise  have  been  done 
or  forborne ;  while,  however,  this  is  supposable,  it  is  improbable ; 
the  possibility,  however,  of  such  an  occurrence  suffices  for  our 


38  EFFECT  OF  LANGUAGE. 

purpose.  Sometimes,  indeed,  the  direct  and  indirect  effects  are 
apparent,  and  their  extent  ascertainable;  and  again,  it  may  be 
that  neither  the  direct  nor  the  indirect  effect  is  apparent  or  its 
extent  ascertainable. 

§  31.  It  is  impossible  to  anticipate  all  the  indirect  effects 
which  may  result  from  the  publication  of  language;  experience 
has  made  us  acquainted  with  some  of  them,  and  to  these  we 
shall  have  occasion  to  refer  by  way  of  illustration. 

§  32.  Among  the  direct  effects  of  the  publication  of  lan- 
guage which  we  have  enumerated  is  the  occasioning  the  person 
to  whom  the  publication  is  made  to  think  well  or  ill  of  another. 
Now,  what  one  thinks  of  another  is  the  reputation  of  that 
other,  and  hence,  when  by  language  one  is  induced  to  think  ill 
of  another,  the  reputation  of  that  other  suffers  disparagement.20 
That  others  think  well  of  him  is  as  gratifying  to  a  man  as  that 


20  Reputation  is  the  estimate  in  which  an  individual  is  held  by  public  fame  in 
the  place  where  he  is  known.     Cooper  v.  Greely,  1  Denio,  347,  365. 

"  Character  is  defined  by  Webster  to  be  the  peculiar  qualities  impressed  by  na- 
ture or  habit  on  a  person,  which  distinguish  him  "from  others;  these  constitute 
real  character,  and  the  qualities  he  is  supposed  to  possess  constitute  his  estimated 
character  or  reputation."     Per  Welles,  J.  in  Carpenter  x.  The  People,  8  Barb.  608. 

"If  the  word  reputation,  when  unqualified,  does,  ex  vi  termini,  or,  in  common 
parlance,  mean  general  reputation — as  we  think  it  does — it  is  unnecessary  to  pre- 
fix the  word  general."     French  x.  Millard,  22  Ohio  Rep.  50. 

"  Reputation  is  thinking.  I  repute  a  man  to  be  good  or  bad — that  is,  I  think 
him  to  be  so."  Maule,  J.,  Doe  dem.  Padwick  x.Wittcoml,  15  Jur.  Y'ZS ;  5  Eng. 
•Law  &  Eq.  Rep.  487. 

"  The  mere  entry  of  something  that  was  in  a  lease  is  not  any  expression  of 
opinion  or  reputation."     Cresswell,  J.,  id. 

"  The  words  character  and  reputation  are  often  used  as  synonymous  terms, 
though  in  fact  not  synonymous."  Bucklinv.  Ohio,  20  Ohio  R.  18;  French  x. 
Millard,  22  id.  50. 

"Character  is  a  term  convertible  with  common  report."  Kimmel  x.  Kimmel, 
3  Serg.  &  R.  337.     Gibson,  J. 

Character  and  reputation  are  the  same.     Id.,  Duncan,  J. 

"  General  character  is  the  estimation  in  which  a  person  is  held  in  the  commu- 
nity where  he  resides."      Marcy,  J.,  Douglass  v.  Tousey,  2  Wend.  354. 

"Public  opinion  is  the  question  in  common  cases  where  character  is  in  issue." 
Boynton  x.  Kellogg,  3  Mass.  R.  192.     Parsons,  Ch.  J. 

The  word  character  has  been  variously  used  in  legal  proceedings,  and  some- 
times denotes  the  personal,  official,  or  special  character  in  which  a  party  sues  or 
is  sued  as  executor,  officer,  tfcc,  but  it  more  frequently  refers  to  reputation  or 


EFFECT  OF  LANGUAGE.  39 

others  think  ill  of  him  is  distasteful,  but  their  merely  thinking 
well  or  ill  of  him  by  itself  can  neither  benefit  nor  prejudice 
him.  Unless  in  consequence  of  the  opinion  thus  entertained, 
some  act  is  done  or  forborne  in  reference  to  him  or  his  affairs, 
which  would  not  otherwise  have  been  done  or  forborne,  he  is 
physically  and  pecuniarily  in  nowise  better  nor  worse  for  such 
opinion.  It  cannot  affect  his  person  or  his  property.  In  the 
ordinary  course  of  events  some  indirect  effect  does  always  re- 
sult from  the  publication  of  language.  The  probability  or  im- 
probability of  any  indirect  effect  resulting  depends  sometimes 
on  the  kind  of  language  published,  and  sometimes  on  the  cir- 
cumstances of  the  publication,  and  sometimes  on  both  the  kind 
of  language  and  the  circumstances  of  the  publication. 

§  33.  We  conclude,  therefore,  that  there  may  be  an  injury 
to  the  reputation  without,  and  independently  of,  an  injury  to 
the  person  or  property,  and  that  an  injury  to  the  reputation 
does  not  necessarily  imply  an  injury  to  the  person  or  the  prop- 
erty.21 

common  report.  (1  Cow.  &  Hill,  notes  460,  1768;  Leddy  v.  Tousey,  2  Wend. 
352;  King  v.  Root,  4  Wend.  113.)  It  is  seldom  used  as  synonymous  with  mere 
inclination  or  propensity  or  even  secret  habit,  nor  is  descriptive  of  the  mere  quali- 
ties of  individuals,  only  so  far  as  others  have  formed  opinions  from  their  con- 
duct.    Safford  v.  The  People,  1  Parker's  Crim.  R.  4*78. 

General  character  is  the  result  of  general  conduct.  Sharp  v.  Scoggin,  Holt's 
N.  P.  C.  541 ;  3  Amer.  Law  J.  X.  S.  145. 

Proof  of  general  bad  character — as  that  term  is  generally  understood  and 
used  in  society — does  not  necessarily  and  legally  prove  the  fact  that  the  witness- 
es' character  for  veracity  is  bad.     Gilbert  v.  Sheldon,  13  Barb.  627. 

"Chaste  character"  means  actual  personal  virtue — not  mere  reputation.  Car- 
penter v.  The  People,  8  Barb.  603  ;  Crozier  v.  The  People,  1  Park.  Cr.  P.  453 ; 
Safford  v.  The  People,  id.  474. 

21  Domat  Civil  Law,  Public  Law,  Book  III.,  enumerates  "defamatory  libels" 
among  private  offences,  and  in  the  same  book,  title  1,  "of  crimes  and  offences," 
enumerates  three  kinds  of  "goods  ;"  "  the  third  is  that  good  which  is  called  honor, 
and  which  men  value  above  all  other  goods."  The  author  then  proceeds  to  in- 
quire whft  is  signified  by  the  term  honor,  and  concludes,  "lastly,  it  signifies  rep- 
utation." Further  on  it  is  laid  down  that  honor  may  be  wounded  either  by 
injurious  treatment  of  the  honor  or  by  assaulting  the  reputation,  for  one  may 
offend  another's  honor  by  actions  or  by  opprobrious  language,  without  lessening 
his  reputation,  and  we  may  blemish  his  honor  by  words,  by  writing  and  other 
attempts  against  his  reputation,  or  one  may  attack  by  one  and  the  same  way  both 
the  reputation  and  person  of  another. 


CHAPTER  III.22 

EIGHTS  ;   DUTIES  J    WRONGS  ;    REMEDIES. 

Description  of  Mights  and  Duties.  Wrongs,  Rights,  and  Du- 
ties undefinable.  What  determines  of  any  act  if  it  he  a 
Wrong.     Remedies.     Injunction.     Original  writs. 

§  34.  Having  in  a  preceding  chapter  described  slander  and 
libel  as  wrongs,  it  is  proper  to  explain  what  is  meant  by  a 
wrong,  and  to  that  end  we  must  first  briefly  consider  the  nature 
of  rights  and  duties.  For  the  opposite  to  a  right  is  not  a  wrong, 
but  a  duty. 

§  35.  Eights  and  duties  are  neither  persons  nor  things,  but 
powers  and  obligations.  A  right  is  a  power  to  do  or  forbear  or 
require  another  to  forbear.  A  duty  is  an  obligation,  a  neces- 
sity to  do  or  forbear,  or  to  submit  to  some  act  of  another. 

§  36.  The  object  of  a  right  or  a  duty  is  a  transaction.  By 
transaction  is  meant  an  act,  and  the  occasion  on  which  the  act 
is  enacted. 

§  37.  Eights  and  duties  are  reciprocal.  The  act  which  one 
has  the  right,  the  power,  to  do  or  forbear,  that  no  other  can  or 
should  hinder  or  compel  the  doing  or  forbearing ;  but  to  such 
doing  or  forbearing  it  is  the  duty,  the  necessity,  of  every  other 
to  submit ;  and  what  one  has  the  right,  the  power,  to  command 
another  to  do  or  forbear,  that  it  is  the  duty,  the  necessity,  of 
that  other  to  do  or  forbear  ;  what  it  is  the  duty  of  one  to  do  or 
forbear,  that  it  is  the  right  of  some  other  to  have  done  or  for- 
borne ;  what  it  is  the  duty  of  one  to  do,  to  that  it  is  the  duty 
of  every  other  to  submit. 

22  For  the  tenor  of  this  chapter  we  acknowledge  our  indebtedness  to  the  gen- 
eral part  of  "Thibaut's  System  of  Pandekten  Rechts,"  as  translated  by  Lindley; 
also  to  Mr.  Maine's  admirable  book,  "  Ancient  Law,"  or,  an  Inquiry  into  the 
Origin  of  Legal  Ideas.  As  to  rights  and  duties,  reference  may  be  had  to  Aus- 
tin's Lectures  on  Jurisprudence. 


RIGHTS  AND  DUTIES.  41 

§  38.  Rights  and  duties  pertain  solely  to  persons.  A  thing 
cannot  have  any  rights  and  cannot  owe  any  duties.  And  as  a 
thing  has  no  rights,  no  person  can  owe  a  duty  to  a  thing. 

§  39.  The  exercise  of  a  right  is  always  optional ;  the  per- 
formance of  a  duty  is  always  compulsory.  One  may  forego  the 
exercise  of  a  right,  or  exercise  it,  at  his  option,  for  either  way 
no  right  of  any  other  suffers ;  but  one  cannot,  at  his  option, 
forego  the  performance  of  a  duty ;  because  to  omit  the  perform- 
ance of  a  duty  is  to  take  away  a  right  somewhere,  either  in 
society  or  an  individual,  the  right  to  have  such  duty  performed. 
Therefore  every  act  done  in  exercise  of  a  right  is  a  voluntary 
[optional]  act,  and  every  act  done  in  the  performance  of  a  duty 
is  an  involuntary  [not  optional]  act.  One  may  in  fact  perform 
his  duties  willingly,  but  as  the  performance  or  non-performance 
is  not  optional,  performance  is  properly  regarded  as  involun- 
tary. 

§  40.  Rights  must  be  exercised  and  duties  must  be  per- 
formed strictly  and  in  good  faith.  An  act  which  exceeds  the 
prescribed  limits  of  a  right  is  not  the  exercise  of  that  right,  and 
an  act  which  falls  short  of  the  prescribed  limits  of  a  duty  is  not 
the  performance  of  that  duty. 

§  41.  Rights  and  duties  cannot  exist  in  the  absence  of  a 
supreme  power  somewhere,  which  protects  the  exercise  of  the 
one  and  enforces  the  performance  of  the  other ;  that  supreme 
power  is  called  a  law,  and  that  branch  of  it  which  relates  to  the 
rights  and  duties  of  individuals  in  their  social  relations  consti- 
tutes the  municipal  law.  In  some  sense,  therefore,  it  is  proper 
to  say  that  rights  and  duties  are  the  results  of  law,  and  if  this 
be  granted,  it  must  follow  that  all  rights  and  duties  of  which 
the  municipal  law  takes  cognizance  are  legal  rights  and  legal 
duties.  There  can  be  no  such  right  recognized  by  law  as  a 
natural  right.  A  right  anterior  to  or  independent  of  the  law 
can  be  a  right  only  of  superior  physical  power. 

§  42.  Every  act  must  be  done  either  in  the  exercise  of  a 
right  or  in  the  performance  of  a  duty,  or  neither  in  the  exercise 


42  RIGHTS;  DUTIES. 

of  a  right  nor  in  the  performance  of  a  duty ;  and  every  act 
must  be  either  such  as  the  law  permits  and  does  not  punish  or 
such  as  the  law  does  not  permit  and  will  punish.  Every  act 
done  in  the  exercise  of  a  right  or  in  the  performance  of  a  duty 
is  a  permitted  act.  Every  act  done  neither  in  the  exercise  of  a 
right  nor  the  performance  of  a  duty  is  an  unpermitted  act. 
Every  act  which  the  law  permits  is  lawful,  and  every  act  which 
the  law  does  not  permit  is  unlawful. 

§  43.  A  lawful  act  cannot  amount  to  a  wrong,  but  every 
unlawful  act  is  a  wrong ;  and  as  every  act  must  be  either  law- 
ful or  unlawful,  every  act  must  be  either  a  wrong  or  not  a 
wrong.  The  rule  that  for  every  wrong  the  law  provides  a 
remedy  holds  true  only  by  postulating  that  only  that  act  is  a 
wrong  for  which  the  law  provides  a  punishment  or  a  remedy. 
The  rule  that  for  every  wrong  the  law  provides  a  remedy  is 
not  universally  true,  because  sometimes  although  a  wrong  has 
been  committed,  the  subject  of  the  wrong  is  by  some  means 
estopped  from  claiming  any  redress.  The  formula  by  which 
this  rule  is  expressed  is,  that  one  cannot  take  advantage  of  his 
own  wrong.  An  act  may  be  such  as  not  to  be  obnoxious  to 
every  remedy,  but  if  it  is  obnoxious  to  any  remedy  it  is  a  wrong. 

§  44.  Different  laws  prescribe  different  rules  of  right  and  duty, 
and  where  there  are  courts  of  different  jurisdictions  that  may 
be  a  wrong  in  one  jurisdiction  which  is  not  a  wrong  in  another ; 
as  where  there  are  civil  and  criminal  courts,  and  as  in  England 
where  there  are  common  law  courts  and  ecclesiastical  courts. 
We  may  sometimes  determine  of  any  act  whether  or  not  it  is  a 
wrong  by  inquiring  whether  or  not  the  law  provides  for  it  any 
remedy  or  punishment.  If  there  is  no  remedy  we  conclude 
there  is  no  wrong — meaning,  of  course,  legal  wrong.  This,  it 
must  be  conceded,  is  an  illogical  and  inverse  method  of  arriving 
at  the  desired  conclusion,  but  we  find  it  oftentimes  resorted  to, 
as  the  best  attainable  standard  by  which  to  determine  of  any 
act  if  it  be  a  wrong.23 

23  "The  remedy  may  always  be  referred  to  as  illustrating  the  right  and  e  con- 
verso."     Van  Rensselaer  v.  Jones,  2  Barb.  G5G. 


WRONGS;  REMEDIES.  43 

§  45.  Wrongs  which  only  affect  society  in  general,  and,  so 
far  as  they  affect  society  in  general,  are  distinguished  from 
wrongs  affecting  only  individuals,  by  denominating  them  crimes. 
Hereafter  we  shall  invariably  use  the  term  wrong  to  signify  an 
act  injuriously  affecting  only  individuals.  Wrongs  are  direct 
or  indirect.  Direct  wrongs  are  those  where  the  act  done  may 
be  per  se  a  violation  of  a  right — a  blow  is  of  this  character. 
Indirect  wrongs  are  those  where  the  act  done  cannot  be  per  se 
a  violation  of  a  right,  and  only  becomes  a  violation  of  a  right 
by  reason  of  some  consequence  resulting  from  that  act.  The 
act  of  publishing  language  is  of  this  character. 

§  46.  We  are  accustomed  to  describe  law  as  the  supreme 
power  in  the  State,  commanding  what  is  right  and  prohibiting 
what  is  wrong ;  but  this,  besides  being  untrue,  does  not  aid  in 
determining  what  is  a  legal  right  or  a  legal  wrong.  So,  too,  a 
wrong  is  correctly  enough  described,  not  defined,  as  an  invasion 
of  a  right,  but  unless  or  until  we  know  what  is  a  right  we  can- 
not know  when  a  right  has  been  invaded. 

§  47.  If  we  could  catalogue  rights  and  distinguish  each  by 
an  intelligible  and  unvarying  definition,  we  should  then  have 
no  difficulty  in  ascertaining  when  a  wrong  has  been  done.  But 
the  nature  of  a  right  forbids  any  such  proceeding.  We  do 
indeed  find  text  writers  and  judges  speaking  of  the  right  of 
speech,  the  rights  of  the  press,  and  the  right  of  property. 
Blackstone,  and  others  following  him,  state  that  the  absolute 
natural  rights  are  the  rights  of  life,  liberty  and  reputation. 
Text  writers  also  speak  of  relative  rights  and  tangible  rights, 
but  all  these  are  mere  words,  entirely  illusory,  capable  of  no 
practical  application.  The  utmost  that  can  be  derived  from  all 
that  has  ever  been  written  on  this  subject  is,  that  a  man  has 
some  rights  pertaining  to  his  person,  his  property  and  his  reputa- 
tion ;  the  nature  of  a  right  is  nowhere  attempted  to  be  defined 
or  explained,  except  in  the  illogical  way  of  stating  a  rule  with 
a  multitude  of  exceptions,  leaving  us  in  doubt  as  to  each  par- 
ticular case  which  arises  whether  it  comes  within  the  rule  or  is 
one  of  the  exceptions. 

§  48.  While  defining  a  wrong  as  an  invasion,  meaning  every 


44  RIGHTS;  DUTIES. 

invasion,  of  a  right,  text  writers  liave  contented  themselves 
Avith  speaking  of  the  absolute  right  of  property,  the  absolute 
right  of  reputation,  &c.24  Now,  if  the  words  "  absolute  right 
of  property '"  have  any  meaning,  they  must  mean  that  one  has 
such  a  right  to  his  property  that  no  one  may  under  any  circum- 
stances take  it  from  him  ;  and  if  this  be  so,  and  every  invasion 
of  a  right  be  a  wrong,  it  must  follow  that  every  deprivation  of 
property  is  a  wrong.  We  know  this  is  not  true ;  one  may  be 
deprived  of  his  property  in  many  ways  without  a  wrong  being 
done.  A  man's  property  may  be  taken  from  him  directly  for 
public  use  on  making  due  compensation,  or  it  may  be  taken 
from  him  to  satisfy  his  obligations,  and  it  may  be  indirectly 


24  "  Eights  of  persons  are  divided  into  absolute  and  relative.  1  Ch.  PI.  13*7. 
This  classification  is  recognized  by  all  our  elementary  writers.  2  Kent  a  Com. 
129;  3  Blacks.  Com.  138."  (By  the  court  Delamater  v.  Russell,  4  How.  Pr.  R.  235.) 
"  The  character  of  individuals  is  unquestionably  one  of  their  absolute  and  per- 
sonal rights.  It  is  therefore  unnecessary  to  make  any  distinct  affirmation  that 
the  protection  of  it  most  immediately  falls  within  the  common  law.  Reputation, 
indeed,  is  not  only  one  of  our  perfect  rights,  but  that  which  alone  gives  a  value 
to  all  our  other  rights."  (Holt  on  Libel,  p.  15.)  "The  security  of  his  reputation 
or  good  name  from  the  arts  of  detraction  and  slander  are  rights  to  which  every 
man  is  entitled  by  reason  and  natural  justice."  (1  Bl.  Com.  book  1,  ch.  1.)  "The 
use  of  the  law  consisteth  principally  in  these  three  things :  *  *  *  * 
III.  For  preservation  of  men's  good  names  from  shame  and  infamy."  Bacon, 
The  Use  of  the  Law.  His  Lordship  says  nothing  further  on  the  subject  in  that 
essay. 

Slander  or  libel  is  an  infringement  of  the  absolute  rights  of  persons.  (Parker 
J.  Delamater  v.  Russell,  4  How.  Pr.  R.  235.)  "  Whether  reputation  be  by  the 
law  of  nature  one  of  the  absolute  rights  of  persons  or  not,  the  common  law  of 
England  does  not  so  consider  it.  The  law  of  unwritten  slander  is  incompatible 
with  it,  and  in  part  establishes  a  different  principle.  For  it  would  follow  from 
that  principle,  and  he  evidently  means  by  it,  that  no  man  can  lawfully  say  or 
publish  anything  to  the  disadvantage  of  another,  even  though  it  be  true,  and  he 
is  prepared  to  prove  its  truth."  (1  Mence  on  Libel,  132.)  Blackstone  and  others, 
translating  persona,  person,  instead  of  status  or  condition,  place  among  the 
rights  of  persons  the  right  to  personal  security,  the  reputation,  <fec,  whereas  the 
right  to  reputation  is  among  the  rights  in  rem.  Edinburgh  Review,  Oct.  1863,  p. 
239,  Amer.  Reprint.  The  right  which  Blackstone  styles  the  right  of  reputation 
is  original  or  innate  as  opposed  to  acquired.  This  right  has  no  connection  with 
a  natural  right  in  the  other  sense  of  the  term.  Blackstone  has  confounded  them, 
and,  supposing  the  right  of  reputation  to  belong  to  the  law  of  persons,  has  called 
it  an  absolute  right  of  persons.     (2  Austin's  Led.  on  Juris.  268,  4*76,  3  id.  179.) 


WRONGS;  REMEDIES.  45 

taken  from  him  in  many  ways  by  acts  subjecting  him  to  loss, 
for  which  the  law  affords  him  no  remedy.  So,  too,  if  the  sup- 
posed right  to  reputation  be  an  absolute  right,  then  every  inva- 
sion of  it  must  be  a  wrong ;  but  reputation  is  often  invaded 
without  such  invasion  amounting  to  "  a  wrong,"  hence  the 
inutility  for  any  practical  purpose  of  the  definition  of  a  wrong 
as  an  invasion  of  a  right.  The  truth  is  that  a  man  has  the 
right  to  the  uninterrupted  enjoyment  of  his  property  to  such  an 
extent  only,  and  subject  to  such  conditions,  as  the  general  wel- 
fare of  the  community  demands,  and  so  of  reputation.  It 
must  be,  therefore,  that  instead  of  saying  of  one  he  has  an  abso- 
lute right  to  property  or  reputation,  we  should  say  he  has  a 
right  thus  and  so,  describing  it  with  such  limitation  and  qualifi- 
cation as  will  make  it  true  that  every  interference  by  another 
with  such  an  enjoyment  of  it  will  amount  to  a  wrong.  This 
may  be  difficult,  or  it  may  be  impossible ;  if  the  latter,  as  we 
conceive  it  to  be,25  let  the  attempt  be  abandoned,  but  it  fur- 
nishes no  reason  for  describing  that  as  an  absolute  right  which. 
is  something  else. 

§  49.  It  is  not  so  proper  to  say  that  the  law  prescribes  what 
is  right  and  prohibits  what  is  wrong  as  to  say  that  law  deter- 
mines rights  by  prescribing  duties,  and  independently  of  any 
positive  enactment  all  legal  duties  are  comprised  in  this  one 
prohibition.  No  one  shall,  without  a  legal  excuse,  do  or  forbear 
any  act,  by  which  doing  or  forbearing  there  results  a  breach  of 
the  peace,  injury  to  the  community,  or  damage  to  the  person  or 
property  of  another. 

§  50.  What  determines  of  any  given  act  whether  or  not  it  is 
permitted,  i.  <?., lawful,  or  unpermitted,*,  e.,  unlawful;  whether 
there  is  or  is  not  a  legal  excuse  for  the  doing  such  act,  is  the 
occasion  upon  which  it  is  enacted.  The  occasion  being  the  entire 
group  of  circumstances  surrounding  the  act,  including  the  actor, 

25  "  The  time  is  passed  when  *  *  it  was  believed  that  everything  was 
strictly  definable,  and  must  be  compressed  within  the  narrow  limits  of  an  abso- 
lute definition  before  it  could  be  entitled  to  the  dignity  of  a  thorough  discussion. 
The  hope  of  being  able  absolutely  to  define  things  *  *  betrays  a  miscon- 
ception of  human  language,  which  itself  is  never  absolute  except  in  mathematics. 
It  misleads."     Lieber's  Civil  Liberty,  23. 


46  RIGHTS;  DUTIES. 

the  patient  or  person  acted  upon,  the  kind  of  act,  the  manner 
of  effecting  the  act,  the  motive  of  the  actor,  and  the  conse- 
quences of  the  act.  It  is  the  occasion  to  which  we  must  in 
every  instance  refer  to  ascertain  whether  there  was  or  was  not 
a  legal  excuse  for  the  act.  Everything  considered,  was  the  act 
lawful  or  unlawful  ?  was  it  in  exercise  of  a  right  or  performance 
of  a  duty  ?  As  it  is  manifestly  impossible  to  preconceive  or  an- 
ticipate every  possible  group  of  circumstances,  so  necessarily  it 
is  impossible  to  catalogue  rights  and  duties — that  is,  to  cata- 
logue the  acts  which  may  or  may  not  be  done  or  forborne. 

§  51.  The  impossibility  of  framing  such,  a  definition  of  a 
right  or  of  a  duty  as  shall  enable  us  to  say  of  any  particular  act 
by  itself,  that  it  is  lawful  or  unlawful,  is  evident.  The  utmost 
we  can  do  is  to  say  that  an  act  done  under  a  certain  given  state 
of  circumstances  is  a  permitted  act,  one  the  actor  had  the  right 
to  do,  or  that  it  is  an  unpermitted  act,  one  the  actor  had  not  the 
right  to  do — that  is,  the  doing  of  which  it  was  his  duty  to  for- 
bear. 

§  52.  The  law,  besides  prescribing  duties,  provides  the  means 
called  remedies  for  protecting  rights  and  redressing  wrongs.  It 
will  in  some  cases  interpose  by  injunction  to  prevent  the  perpe- 
tration of  a  wrong,  but  in  no  case  will  an  injunction  be  issued 
to  stay  the  publication  of  an  alleged  libel.26 

26  The  court  of  star  chamber,  -which  Lord  Campbell  described  as  a  court  of 
criminal  equity  {Emperor  of  Austria  v.  Day,  V  Jur.  N.  S.  483),  and  which  descrip- 
tion was  quoted  with  approval  by  Chief  Baron  Pollock  (The  Alexandria,  MS.),  was 
in  the  habit  of  restraining  the  publication  of  certain  libels  (Hudson's  Star  Cham- 
ber). After  the  abolition  of  that  court  Chief  Justice  Scroggs,  and  the  other 
judges  of  the  King's  Bench,  prohibited  the  publication  of  a  periodical  called 
" The  Weekly  Packet  of  Advice  from  Rome;  or,  the  History  of  Popery."  For 
this  Scroggs  was  impeached  (8  Howell's  State  Trials,  198).  In  Du  Bosl  v.  JBer- 
esford,  2  Camp.  Rep.  511,  Lord  Ellenborough  said  the  exhibition  of  a  libelous 
painting  might  be  restrained  by  injunction.  That  was  an  obiter  dictum,  and  is 
said  to  have  excited  great  astonishment  in  the  minds  of  all  the  practitioners  in 
the  courts  of  equity  iu  England.  (Home's  case,  20  Howell's  State  Trials,  799 
note.)  In  Burnett  v.  Chetwood,  2  Merivale's  Rep.  441,  note,  Lord  Chancellor 
Parker  granted  an  injunction  to  restrain  the  publication  of  a  translation  of  a  book 
from  Latin  into  English,  on  the  ground  that  the  book  in  English  might  have  a 
hurtful  public  tendency  not  likely  to  occur  while  the  matter  remained  in  Latin. 
In  Brandrcth  v.  Lance,  8  Paige,  24,  the  Chancellor,  on  demurrer  to  a  bill  praying 


WRONGS;  REMEDIES.  47 

§  53.  The  ordinary  mode  of  remedying  a  wrong  is  by  an 
action.  Actions  were  anciently  commenced  by  original  writ.27 
These  writs  differed  from  each  other  according  to  the  nature  of 
the  wrong  to  be  redressed.  These  writs  were  preserved  in  the 
Chancery  in  The  Register  of  Writs,  which  register  was  printed 
and  published  in  the  reign  of  Henry  VIII.  of  England.28     The 

an  injunction  to  restrain  the  publication  of  a  libelous  pamphlet,  dismissed  the 
bill  on  the  ground  that  the  court  had  no  jurisdiction  to  interfere,  no  right  to  "  lit- 
erary or  medical  property"  being  invaded;  and  see  Hoyt  v.  McKenzie,  3  Barb. 
Ch.  R.  320.  In  Clarke  v.  Freeman,  11  Beavan,  112;  12  Jurist,  149;  17  Law 
Jour.  Rep.  Ch.  142,  the  plaintiff,  a  physician,  applied  for  an  injunction  to  restrain 
the  defendant  from  among  other  things  publishing  an  advertisement  so  expressed 
as  to  raise  the  inference  that  certain  pills  sold  by  defendant  were  sold  by  him  on 
behalf  of  the  plaintiff.  The  court  held  the  advertisement  in  question  amounted  to 
a  libel  on  the  plaintiff,  and  dismissed  the  bill;  because,  to  grant  the  injunction, 
"  would  imply  that  the  court  has  jurisdiction  to  stay  the  publication  of  a  libel, 
and  I  cannot  think  it  has."  Thi3  case  is  questioned  in  supplement  to  Drewry  on 
Injunctions,  34,  but  not  on  the  ground  that  the  court  had  jurisdiction  to  restrain 
the  publication  of  a  libel.  In  deciding  Brandreth  v.  Lance  (sujira),  the  Chancellor 
referred  to  2  R.  S.  737,  s.  1,  pt.  iv,  ch.  11,  tit.  6,  art.  1.  This  section  confers  on 
courts  the  power  to  bind  persons  to  give  security  to  keep  the  peace  in  certain 
cases,  and  its  last  clause  reads  thus:  "This  section  shall  not  extend  to  convic- 
tions for  writing  or  publishing  any  libel,  nor  shall  any  such  security  be  hereafter 
required,  by  any  court  upon  any  complaint,  prosecution,  or  conviction  for  any 
such  writing  or  publishing."  The  revisers,  in  their  note  to  that  section,  say,  in 
reference  to  the  above-recited  clause,  that  it  is  new,  and  "it  is  conceived  that  this 
provision  virtually  takes  away  from  the  courts  the  common  law  power  of  binding 
over  a  party  guilty  of  publishing  a  libel."  As  to  the  common  law  power  of  bind- 
ing to  good  behavior,  see  Hawkins'  Pleas  Or.,  ch.  61,  and  Viner's  Abridgment, 
tit. — Good  Behaviour;  Highmore  on  Bail,  248.  By  Laws  of  1860,  ch.  508,  §  20, 
p.  1007,  every  person  in  the  city  of  New  York  shall  be  deemed  guilty  of  disor- 
derly conduct  "  who  shall  use  any  threatening,  abusive,  or  insulting  behavior 
with  intent  to  provoke  a  breach  of  the  peace."  The  courts  interfere  by  injunction 
to  restrain  the  publication  of  letters  written  by  a  party  or  his  testator  to  the  de- 
fendant or  others.  (2  Story  Eq.  Juris.  §§  943  to  949;  Woolsey  v.  Judd,  11  How. 
Prac.  Rep.  49;  4  Duer,  379.)     See  Appendix,  note  1. 

21  One  of  the  earliest  refinements  in  forensic  science  was  that  of  classifying 
the  various  subjects  of  litigation  and  allotting  to  each  class  an  appropriate  formula 
of  complaint  or  claim.  Such  was  the  practice  in  ancient  Rome  almost  as  early 
as  the  law  of  the  twelve  tables,  and  continued  until  the  time  of  Constantine,  who 
abolished  the  judicial  formula?.  These  formula?  in  the  English  law  were  called 
writs.  How,  or  when,  or  whence  introduced  into  England  is  undetermined. 
Stephens'  PI.  ch.  1,  and  id.  appendix,  note  2. 

M  4  Reeve's  Hist.  426,  432.  Original  writs  were  abolished  in  England  by 
statute.     2  Will.  IV.,  ch.  39. 


48  REMEDIES. 

most  ancient  writs  provided  for  the  most  obvious  kinds  of 
wrongs,  as  nuisance,  waste,  trespass,  &c. ;  but  in  the  progress 
of  society  it  seems  that  cases  of  injury  arose  new  in  their  cir- 
cumstances, and  not  within  any  of  the  writs  then  known,  and 
that  the  power  to  issue  writs  of  a  new  kind  was  conceived  not 
to  exist  without  the  authority  of  the  Parliament ;  accordingly 
by  the  statute  of  the  IB  Edward  I.,  ch.  24,  called  the  statute  of 
Westminster  the  2d  (say  A.  D.  1285),  it  was  provided  "  That  as 
often  as  it  shall  happen  in  the  chancery,  that  in  one  case  a  writ 
is  found,  and  in  a  like  case  {in  consimilu  casv)  falling  under  the 
same  right,  and  requiring  like  remedy,  no  writ  is  to  be  found, 
the  clerks  in  the  chancery  shall  agree  in  making  a  writ,"  &c. 
Under  the  sanction  of  this  act  large  accessions  were  made  to 
the  existing  stock  of  original  writs.29  These  new  writs  were 
said  to  be  issued  upon  the  case,  and  the  actions  commenced  by 
them  were  designated  actions  upon  the  case,  or  actions  of  trespass 
on  the  case.  Among  this  class  was  the  action  of  trespass  on  the 
case  for  words — the  ancient  form  of  the  action — now  known  as 
the  action  of  slander  or  libel,  and  which  is  the  only  civil  reme- 
dy for  slander  and  libel. 

§  54.  The  consideration  of  the  course  of  procedure  in  an 
action  pertains  more  properly  to  a  subsequent  stage  of  our  in- 
quiry. AYe  will  here  merely  remark  that  the  rules  by  which 
we  determine  when  a  wrong  has  been  committed  and  the  rules 
of  pleading,  of  evidence  and  of  practice,  although  they  have  a 
certain  inter-dependence,  are  in  fact,  and,  if  we  would  avoid 
confusion,  must  ever  be  regarded  as  separate  and  distinct  rules. 
Preliminary  to  attempting  an  analysis  of  the  wrongs,  slander 
and  libel,  we  shall  in  our  next  chapter  consider  what  is  the  gist 
of  the  action  for  slander  or  libel. 


29  Although  the  new  writs  were  to  be  framed  only  in  consimilu  casu,  "  many 
writs  were  framed  for  various  kinds  of  trespasses  unknown  in  former  ages."  Sul- 
livan's Lectures,  Lect.  33;  Stephens'  PI.  7.  The  first  reported  action  of  trespass 
on  the  case  is  said  to  be  found  22  Edw.  III.,  Ass.  41.  Reeve's  Hist.  That  would 
■be  A.  D.  1349.  We  have  not  verified  this  statement,  and  doubt  its  correctness. 
The  action  on  the  case  has  its  counterpart  in  the  actio  utilis  of  the  Roman  Law. 
See  2  Austin  Lect.  Jur.  303. 


CHAPTER    IV. 

WHAT   IS    THE   GIST   OF   THE   ACTION   FOE   SLANDER   OK    LIBEL. 

History  Silent  as  to  the  Introduction  of  the  Action  for  Slander. 
Hypothesis  Necessary.  How  the  Law  Protects  Reputation. 
Fiction.  Pecuniary  Loss  the  Gist  of  the  Actions  for  Slan- 
der and  Libel. 

§  55.  It  is  not  known  with  certainty,  or,  rather,  all  are  not 
agreed,  either  as  to  the  origin  of  the  remedy  by  action  for  slan 
der  or  libel,  or  as  to  the  gist  of  such  an  action,  and  neither 
history  nor  judicial  decision  furnishes  any  satisfactory  solution 
of  these  doubts.  We  know,  indeed,  that  all  nations  have  recog- 
nized the  capacity  for  injury  inherent  in  language,  and  have 
provided  some  means  for  punishing  offences  arising  from  an 
abuse  of  the  gift  of  speech ;  but  we  seek  in  vain  among  these 
laws  for  a  clew  to  the  principles  by  which  at  this  day  we  may 
determine  when  a  wrong  by  slander  or  libel  has  been  occasioned, 
and  when  we  may  properly  invoke  the  remedy,  by  action  for 
slander  or  libel.30     As  the  action  of  trespass  on  the  case  owed 


30  After  a  reference  to  all  available  authorities  on  the  subject  of  the  ancient 
laws  against  offences  by  language,  and  preparing  a  lengthy  note  on  the  subject, 
we  conclude  that  however  interesting  as  history,  its  publication  here  would  not 
advance  the  object  of  this  essay.  The  curious  student  may  refer  to  Holt  on 
Libel,  ch.  1,  II. ;  1  Mence  on  Libel,  ch.  8,  9 ;  Starkie  on  Slander,  note  3  Johns. 
Cas.  382;  Wilkins'  Leg.  Anglo-Sax.;  Lambard's  Saxon  Laws;  Nicholson's  Pre- 
fat.  ad  Leg.  Anglo-Sax. ;  Stiernhook  De  Jure  Vetusto  Suconuni  et  Gothorum ; 
Tacitus'  De  Mor.  Germ. ;  Saltern  De  Antiq.  Leg.  Brit. ;  Dugdale's  Origines  Ju- 
ridicales;  Disney's  Ancient  Laws  against  Immoralities;  Gurdon's  History  of 
Court  Baron  and  Court  Lect. ;  Petit's  Leges  Atticce;  Johnson's  Institutes  of  the 
Civil  Law  of  Spain;  Michaelis'  Com.  on  the  Law  of  Moses;  Smith's  Translation; 
The  English  Statutes,  3  Edw.  I. ;  2  Rich.  II. ;  1  Phil,  and  Mary ;  1  Eliz. ;  the 
publications  of  the  English  Record  Commissioners ;  Pitcairn's  Criminal  Trials  in 
Scotland.  For  seventeenth  century  ideas  of  the  law  of  libel  in  Massachusetts, 
see  Sketches  of  the  Judicial  History  of  Massachusetts ;  and  among  the  Dutch  in 
4 


50  GIST  OF  ACTION. 

its  origin  to  the  provisions  of  the  statute,  13  Edward  I.,  A.  D, 
1285,  it  seems  necessarily  to  follow  that  the  action  of  trespass 
on  the  case  for  words  must  date  its  origin  at  some  period  subse- 
quent to  that  statute  ;31  but  it  does  not  thence  follow  that  ante- 
rior to  the  introduction  of  the  action  of  trespass  on  the  case  for 
words,  there  existed  in  England  no  remedy  for  wrongs  by 
language.  We  know  that  for  centuries  prior  to  the  statute  of 
13  Edward  I.,  offences  which  we  at  this  day  designate  slander 
and  libel  were  recognized  and  punished ;  but  of  the  time  and 
manner  of  introducing  the  remedy  by  action  of  trespass  on  the 
case  for  words  we  know  absolutely  nothing.  The  reported 
decisions  in  the  courts  of  law  in  England,  printed  and  in  man- 
uscript, reach  back  at  least  as  far  as  A.  D.  1216,  but  we  find  in 
those  reports  no  reference  to  an  action  for  words  earlier  than 
A.  D.  1321.32  That  decision  merely  serves  to  inform  us  that  at 
that  time  existed  the  struggle  for  jurisdiction  which  probably 
commenced  on  the  division  of  the  courts  into  courts  temporal 
and  courts  ecclesiastical,  and  which  continued  certainly  until 
after  the  reign  of  the  first  James  of  England. 

§  56.  Since,  then,  we  can  obtain  no  positive  information  on 
the  subject  of  our  inquiry,  we  are  driven  to  hypothesis.  Our 
unwritten  law  is  based  on  the  so-called  common  law  of  England, 

New  York,  see  Valentine's  Manual  of  Common  Council  for  1849,  p.  402,  421,  and 
under  English  rule;  Valentine's  Manual  for  184*7,  p.  359;  and  Thomas'  Hist,  of 
Printing  in  America.     And  see  List  of  Authors  following  Table  of  Cases,  ante. 

31  Section  53,  ante  and  note  29,  ante,  Mr.  Pomeroy,  in  his  introduction  to  Mu- 
nicipal Law,  says,  §  199  :  That  before  the  statute  "  there  was  absolutely  no  pro- 
vision for  a  vast  majority  of  the  legal  rights  *  *  which  are  now  the  most 
common  and  important."  And  §  201 :  The  effect  of  the  statute  "  was  to  extend 
this  action  to  cases  where  the  injury  was  consequential  or  indirect." 

3-  That  case  is  in  the  year  book  of  Edward  II.  (Hil.  14.  Edw.  II.,  p.  416) ;  it 
was  an  attachment  upon  a  prohibition  against  proceeding  in  a  court  Christian  for 
defamatory  words.  There  is  nothing  in  the  report  to  indicate  that  it  was  a  novel 
proceeding.  March,  in  his  Treatise  on  Slander,  says  he  could  find  no  action  for 
scandalous  words  before  Edward  the  Third's  time,  and  only  one  such  action  dur- 
ing fifty  years  of  that  King's  reign  ;  three  such  actions  during  the  reign  of  Ed- 
ward the  Fourth ;  not  one  in  the  reign  of  Henry  the  Seventh  ;  and  only  five  in 
thirty-eight  years  of  the  reign  of  Henry  the  Eighth.  At  p.  5  he  says :  Actions 
for  scandal  are  amongst  the  most  ancient  in  the  law. 


GIST   OF   ACTION.  51 

and  whatever  the  number  of  sources  which  contributed  to  make 
up  that  complex,  vaguely  understood  and  imperfectly  ascer- 
tained set  of  legal  ideas  denominated  the  common  law  of  Eng- 
land, it  is  certain  that  so  much  of  it  as  pertains  to  the  rights 
of  persons  is  mainly  derived  from  the  Anglo-Saxon  and  Roman 
civil  laws.  Of  both  of  those  systems  of  laws  history  furnishes 
us  ample  details.  We  know  that  Rome  held  possession  of 
Britain  from  about  the  end  of  the  first  half  century  of  the 
Christian  era  to  about  the  middle  of  the  fifth  century  (say  from 
A.  D.  45  to  A.  D.  448),  and  during  this  period  Roman  civil 
law  was  administered  in  England.  When  the  Romans  aban- 
doned Britain  the  Saxons  became  its  masters,  and,  alternately 
with  the  Danes,  so  continued  until  the  Norman  conquest  (A.  D. 
1066).  The  Saxons  introduced  their  own  system  of  laws.  The 
controlling  idea  of  those  laws  was  the  maintenance  of  the  peace 
and  protecting  the  person  and  property.  They  did  not,  nor 
does  the  law  at  this  day,  give  directly  any  remedy  for  outraged 
feelings  or  sentiments.33    With  few  exceptions,  these  laws  de- 

33  See  Tilley  v.  Hudson  R.  R.  Co.,  23  How.  369,  370 ;  Green  v.  Hudson  R.  R. 
Co.,  32  Barb.  25;  Lehman  v.  City  of  Brooklyn,  29  Barb.  234;  Flemington  v. 
Smithers,  2  C.  &  P.  (X.  P.)292;  Terwilliger  v ;  Wands,  17  K  Y.  54;  Wilsony.  Goit, 
17  N.  Y.  442;  Bedell  v.  Powell,  13  Barb.  183;  the  cases  to  the  contrary  were 
overruled.  Mence,  commenting  on  the  statement  of  Holt,  that  the  few  actions 
for  slander  to  be  found  in  the  earlier  law  reports  was  creditable  to  the  people  of 
those  times,  remarks  that  the  credit  was  not  due  to  the  good  manners  but  to  the 
fact  that  "  the  common  law  took  cognizance  only  of  injuries  to  the  person  and 
property."  (1  Mence  on  Libel,  333.)  Perhaps  among  the  reasons  why  there  were 
so  few  actions  for  slander,  one  may  be  that  the  parties  themselves  undertook  to 
redress  the  injury  without  resorting  to  the  law.  When  King  Harold  wanted  a 
blood-fine  of  Reidar,  the  Icelander,  for  killing  one  of  his  (Harold's)  followers, 
Reidar  refused  to  pay  it,  because  the  man  brought  his  death  upon  himself,  by  be  - 
having  rudely  to  him.  See  Den  Danske  Erobring  of  England  og  Konnandict ; 
Copenhagen,  1863.  The  Jesuits  sanctioned  killing  for  slander,  particularly  for 
slander  of  one  in  religious  orders,  but  they  held  that  the  killing  should  be  secret, 
and  not  open  to  create  scandal.  (Pascal  Letters,  xiii.)  In  the  "  Ethica  Christiana," 
by  Father  Benedict  Stattler,  published  in  1789,  it  is  stated,  paragraphs  1889, 
1891,  and  1892,  that  a  Christian  may,  to  prevent  a  "contumelia  gravis  certo  pro- 
visa  *  *  *  *  aut  calumnia"  *  *  *  murder  the  "  injusti  aggresoris  aut 
calumniatoris."  Father  Stattler's  book  was  published  "  cum  permissu  superio- 
rum,"  and  is  said  to  be  still  in  use  as  a  manual  for  ecclesiastics. 

The  necessity  of  protecting  character  by  law  could  not  obtrude  itself  till  so- 


52  GIST   OF   ACTION. 

signed  to  remedy  every  wrong  by  a  pecuniary  mulct  or  fine 
(iveref*  proportioned  and  adjusted  to  the  kind  and  degree  of  the 
wrong  committed.  In  that  form  of  trial  which  corresponded  to 
our  present  jury  trial,  the  question  in  Saxon  times  was  only  the 
guilt  or  innocence  of  the  accused.35  The  penalty  (the  dama- 
ges) was  fixed  by  the  codes.  At  a  later  period,  after  the  Nor- 
man Invasion,  and  when  the  Anglo-Saxon  codes  were  lost  by 
desuetude,  the  courts  fixed  the  amount  of  damages ;  this  power, 
however,  when  jury  trials  assumed  their  present  phase,  appears 
to  have  been  transferred  by  the  court  to  the  jury — the  court, 
however,  retaining  its  power  to  regulate  the  damages.36  For 
ages  the  courts  always  regularly  revised  the  allowance  by  the 
jury  of  damages,  and  the  power  is  still  held  and  exercised  by 
the  courts,  although  at  the  present  time  it  is  customary  to  make 
the  revision  by  granting  a  new  trial.  Even  now  the  courts  not 
unfrequently  order  a  reduction  of  damages,  or  a  new  trial,  at 
the  election  of  the  party  to  whom  damages  have  been  awarded. 
The  Anglo-Saxon37  codes  provide  for   offences   occasioned  by 

ciety  had  begun  to  assume  a  complicated  form.  (Borthwick  on  Libel,  1.)  The 
coarseness  of  language  indulged  in  formerlj-  must  strike  every  student  of  history. 
Henry  III.  (A.  D.  1248)  spoke  of  the  Aldermen  of  London  as  "London  boors," 
applied  a  like  epithet  to  the  Bishop  of  Ely,  and  dismissed  Bishop  Aymer  by  tell- 
ing him  to  go  to  the  devil.  See  Miracles  of  Simon  de  Montfort  and  works  of 
Roger  Bacon.     See  note  48,  post. 

34  Damages   correspond    to  the   Anglo-Saxon   were:  1   Palgrave's  Rise.  Ac.,' 
Eng.  Commonwealth,  205;  Bosworth's  Anglo-Saxon  Diet.,  tit.  Were  and  Wite;  2 
Lappenburg's  History  of  England  (Thorp's  Translation),  336. 

35  As  to  the  origin  of  trial  by  jury,  <fcc,  see  Forsyth's  Hist,  of  Trial  by  Jury, 
and  Stephen  PI.  Appendix,  note  40 ;  2  Reeves'  Hist.  270 ;  Fortescue  de  Laudibus 
Legum  Anglise,  ch.  xxv.,  xxvi.,  xxvii.,  and  notes  to  the' edition  by  Amos;  2  Hal- 
lam's  Middle  Ages,  388-406,  note,  11th  edit.;  Palgrave's  English  Common- 
wealth, 272. 

36  See  Viner's  Abr.,  tit.  Damages — J.  K.  L.  M.,  as  to  powers  of  courts  to  in- 
crease or  mitigate  damages.  The  right  was  denied  in  an  action  for  slander,  be- 
cause there  is  in  such  an  action  nothing  apparent  for  the  judgment  of  the  court 
to  act  upon.  Id.  K.  The  damages  increased  for  giving  plaintiff  bad  food  to  eat. 
(1  Rolle,  89.)  And  in  cases  of  maihem.  See  Jacobs'  Law  Diet.,  tit.  Maihem.  Rolle 
Ab.,  tit.  Damages;  2  Sharswood's  Blackstone's  Comm.,  121  note. 

37  Sir  Francis  Palgrave,  in  his  "  History  of  Normandy  and  of  England,"  which 
unhappily  he  was  not  spared  to  complete,  objects  to  the  term  Anglo-Saxon  as  a 


GIST   OF   ACTION.  53 

language,  but  they  are  all  offences  which  amount  to  public 
wrongs  or  crimes,  sedition,  or  treason,  rather  than  private 
wrongs  or  torts.  These  codes  are  in  fact  barren  of  any  provi- 
sion of  a  pecuniary  fine  or  penalty  for  a  private  injury  by 
language.  While  the  Saxons  were  yet  dominant  in  Britain, 
Christianity,  which  had  been  early  introduced  into  England  and 
become  extinct,  was  reintroduced  through  the  Church  of  Rome 
— say  A.  D.  596.  The  introduction  of  Christianity  did  not 
abrogate  tfie  Saxon  laws,  but  it  at  least  supplemented  upon 
them  many  precepts  of  Christianity,  and,  beyond  a  doubt,  laid 
the  foundation  for  the  dicta  that  Christianity  is  part  of  the  com- 
mon law  of  England.38     The  clergy  rose  to  great  power  in  the 


designation  of  the  English  of  the  ante-Norman  period.  He  denies  there  was  any 
Anglo-Saxon  people  or  language,  properly  so  called,  and  says :  "  If  you  had 
asked  Alfred  what  he  had  in  his  hand,  he  would  have  answered  it  was  an  Englisc- 
boc.  *  *  *  The  name  of  our  nation  then,  as  now,  was  English."  (Vol.  Hi.,  p. 
631,  edit.  1864.)  Mr.  Palgrave  himself  employs  the  term  Anglo-Saxon  in  his 
earlier  works. 

36  We  do  not  intend  to  assert  that  Christianity  is  parcel  of  the  English  com- 
mon law.  Sir  Matthew  Hale,  in  Rex  v.  Taylor  (Ventris,  293;  3  Keble, 
621 ;  Tremayne's  Pleas  of  the  Crown,  226 ;)  following  Lord  Coke,  uttered  a  dic- 
tum that  "  Christianity  is  part  of  the  laws  of  England."  That  dictum  has  been 
repeated  in  subsequent  cases.  See,  among  others,  Rex  v.  Webster,  Fitzg.  64 ;  2  Str. 
834;  Reg.  v.  Gathercole,  2  Lewin  C.  C.  237;  Reg.  v.  Hetherington,  5  Jur.  529,  Q. 
B. ;  Rex  v.  Paine,  1  East  P.  C.  5 ;  and  Lewis  on  Authority  in  Matters  of  Opinion. 
Holt  says  Alfred  made  Christianity  part  and  parcel  of  the  common  law.  (Holt 
on  Libel,  32.)  See  strictures  on  this  dictum,  1  Mence  on  Libel,  303.  We  are  in- 
formed that  Jefferson  has  shown  the  fallacy  of  the  dictum,  but  we  have  not  veri- 
fied this  information. 

The  Dome-Book  of  Alfred,  said  by  Blackstone  to  have  been  extant  so  late  as 
the  reign  of  King  Edward  the  Fourth,  and  to  have  been  lost,  was  supposed  by 
both  Hallam  and  Turner  never  to  have  existed.  It  has  since  been  published  by 
the  Record  Commissioners,  vol.  1,  pp.  45-101.  It  commences  with  the  ten  com- 
mandments, followed  by  many  Mosaic  precepts.  After  quoting  the  canons  of  the 
Apostolical  council  at  Jerusalem,  Alfred  refers  to  the  command,  "  As  ye  would 
that  men  should  do  unto  you,  do  ye  also  to  them  ;"  adding,  "  from  this  one  doom, 
a  man  may  remember  that  he  judge  every  one  righteously  he  need  heed  no  other 
doom  book." 

The  Puritan  Colony  of  New  England  resolved  at  a  "  General  Court,  October 
25th,  1639  *  *  *  the  worde  of  God  shall  be  the  onely  rule  to  be  attended 
vnto  in  ordering  the  affayres  of  government  in  this  plantatio." 


54  GIST   OF    ACTION,. 

State,  they  sat  in  the  courts  of  justice,  and  took  part  in  the  de- 
cision of  all  judicial  controversies,  and  they  claimed  and  exer- 
cised a  sole  jurisdiction  over  all  questions  involving  considera- 
tions of  moral  right  and  wrong  (sins),  rather  than  considera- 
tions of  legal  rights  or  rights  of  property  ;  those  rights  in  fact 
which  were  provided  for  by  the  letter  of  the  laws.  The  juris- 
diction thus  claimed  and  exercised  included  heresy,  adultery, 
perjury,  and  defamation.  This  jurisdiction  was  assumed  and 
exercised  with  the  avowed  design  not  of  compensating  the  in- 
jured party,  but  for  the  reformation  of  the  offender.  Reparation 
in  damages  was  made  only  in  the  eases  and  for  the  offences 
provided  for  in  the  codes.  In  the  exercise  of  their  powers  the 
clergy  adopted — at  least  to  some  extent — the  forms  of  proced- 
ure in  use  in  the  Roman  law. 

On  the  Norman  accession  William  introduced  the  feudal 
system,  but  professed  to  respect  and  continue  in  force  the  Saxon 
laws.  He  separated  the  courts  into  courts  of  different  jurisdic- 
tions, the  clergy  no  longer  sat  in  the  temporal  courts,  but  apart 
in  courts  Christian  or  Ecclesiastical.  It  would  seem  they  were 
debarred  the  exercise  of  any  jurisdiction  in  controversies  in 
which  money  or  damages  were  claimed.  The  line  of  demarca- 
tion between  the  jurisdiction  of  the  temporal  and  ecclesiastical 
courts  appears  to  have  been  that,  where  compensation  was 
sought,  resort  was  to  be  had  to  the  temporal  courts,  and  where 
the  reformation  of  the  offender  only  was  desired,  then  resort 
was  to  be  had  to  the  ecclesiastical  courts.  And  where  the 
ecclesiastical  courts  entertained  jurisdiction  of  suits  in  which 
money  might  be  demanded,  the  temporal  courts  restrained  them 
from  proceeding  therein  by  tjie  writ  of  prohibition.  As  there 
is  now,  so  there  must  ever  have  been,  a  distinction  between 
language  occasioning  pecuniary  or  temporal  injury  and  language 
insulting  and  provoking,  and  harrowing  to  the  feelings,  without 
occasioning  pecuniary  or  temporal  injury.  This  distinction 
seems  to  have  been  clearly  recognized  by  the  statute  circum- 
specte  agatis,™  and  leads  almost  irresistibly  to  the  conclusion 

39  The  statute  thus  styled  was  passed  13  Edward  I.,  stat.  iv.,  ch.  1,  A.  D.  1285. 
The  King  to  his  justices  sendeth  greeting :  "  Use  yourselves  circumspectly  (cir- 


GIST  OF   ACTION.  55 

that  the  gist  of  the  action  of  trespass  on  the  case  for  words  was 
the  pecuniary  loss,  and  not  for  the  injury  to  the  reputation — the 
defamation.  In  the  early  stages  of  society  only  that  language 
which  put  one  in  peril  of  punishment,  loss  of  inheritance  or 
of  social  companionship,  could  occasion  pecuniary  loss  ;40  but  as 
society  progresses,  as  more  faith  and  reliance  have  to  be  placed 
by  men  each  in  the  integrity  of  the  other,  so  increases  the 
power  to  inflict  pecuniary  injury  by  means  of  language.  The 
theory  of  the  law  being  to  redress  all  wrongs  by  a  pecuniary 
fine,  whenever  it  appeared  that  a  pecuniary  wrong  was  occa- 
sioned by  language,  there  the  temporal  courts  undertook  to 
afford  redress.  It  may  be  that  at  first,  in  all  cases,  in  order  to 
maintain  an  action  for  words  in  the  temporal  courts,  it  was 


cumspecte  agatis)  in  all  matters  concerning  the  Bishop  of  Norwich  and  his  clergy, 
not  punishing  them  if  they  hold  pleas  in  courts  Christian  of  such  things  as  be 
meer  spiritual  *  *  *  and  for  laying  violent  hands  on  a  clerk,  and  in  canons 
of  defamation  it  hath  been  granted  already  that  it  shall  be  tried  in  a  spiritual  court 
when  money  is  not  demanded  but  a  thing  done  for  punishment  of  sin."  By  this 
it  appears,  said  Lord  Coke,  that  the  cognizance  of  defamation  was  granted  by  act 
of  Parliament.  (2  Inst.  492.)  See  Appendix  D,  No.  11,  to  Ecclesiastical  Comm'rs 
Report,  Feb.  27,  1832;  and  Stephens'  Ecclesiastical  Statutes,  pp.  26-34.  The 
statute  9  Edward  II.,  stat.  1,  ch.  iv.,  A.  D.  1315,  enacted:  "In  defamation  pre- 
lates shall  correct  also  in  manner  above  said,  the  King's  prohibition  notwith- 
standing." 

It  seems  of  those  defamations  by  which  the  party  is  damnified  the  spiritual 
court  cannot  hold  plea.  Vin.  Ab.,  tit.  Prohibition,  D.  5.  In  Bacon's  Abr.,  tit. 
Courts  Ecclesiastical  D,  it  is  said :  "  No  suit  can  be  instituted  in  an  ecclesiastical 
court  for  defamatory  words  in  writing,  because  they  may  be  the  subject  of  an 
action  at  law."  Comb.  71.  This,  however,  appears  not  to  be  correct.  In  Ware 
v.  Johnson,  2  Sir  Geo.  Lee's  Cas.  in  Eccl.  Co'ts,  103  (A.  D.  1755),  the  words,  "He 
keeps  a  whore  in  his  house,"  was  held  to  be  defamation,  and  that  whether  the 
language  was  in  writing  or  by  parol.     And  see  2  Phil.  Eccl.  Cas.  106. 

The  jurisdiction  of  Ecclesiastical  Courts  in  suits  for  defamation  was  abolished 
by  statute.    (18  and  19  Vict.,  ch.  40.) 

40  It  is  said  that  formerly  no  actions  were  brought  for  words  unless  the  slander 
was  such  as,  if  true,  would  endanger  the  life  of  the  object  of  it.  (Noy,  64;  1 
Freem.  277.)  But  too  great  an  encouragement  being  given  by  this  lenity  to  false 
and  malicious  slanders,  it  is  now  held  that  for  scandalous  words  of  the  species  be- 
fore mentioned  (that  may  endanger  a  man  by  subjecting  him  to  the  penalties  of  the 
law,  may  exclude  him  from  society,  may  impair  his  trade,  or  may  affect  a  peer  of 
the  realm,  a  magistrate,  or  one  in  public  trust),  an  action  on  the  case  may  be  had 
without  proving  any  particular  damage  to  have  happened,  but  merely  upon  the 
probability  that  it  might  happen.     3  Bl.  Com.  ch.  8. 


56  GIST   OF   ACTION. 

necessary  to  prove  a  pecuniary  loss ;  but  those  courts,  by  laying 
it  down  as  a  rule  of  evidence  that  certain  words  per  se,  and, 
without  any  further  evidence,  were  proof  of  pecuniary  loss, 
facilitated  a  resort  to  the  temporal  courts,  and  by  gradually 
extending  the  list  of  words  which  were  regarded  jper  se  as  evi- 
dence of  pecuniary  loss,  so  did  those  courts  extend  their  juris- 
diction. Thus,  probably,  originated  the  distinction  between 
words  actionable^?"  se  and  words  only  actionable  on  proof  by 
other  evidence  than  the  words  themselves  of  pecuniary  loss.  It 
is  supposed  that  formerly  the  English  law  recognized  no  dis- 
tinction between  the  effect  of  written  and  spoken  words.  When 
or  why  that  distinction  was  introduced  is  unknown.  It  may 
well  be  that  the  desire  of  the  temporal  courts  to  enlarge  their 
jurisdiction  led  them  to  adopt  this  distinction,  for  which  they 
found  some  warrant  in  the  Roman  law.41 

§  57.  We  attempted  to  explain  in  Chapter  II.  the  differ- 
ence between  an  injury  to  reputation  and  an  injury  to  property ; 
and  to  show  that  an  injury  to  the  reputation  did  not  necessarily 
imply  an  injury  to  the  person  or  property.  In  Chapter  III.  we 
attempted  to  show  that  reputation  was  not  an  absolute  right, 
and  in  the  preceding  portion  of  this  chapter  we  have  attempted 
to  show  that  the  temporal  courts  of  common  law  only  recog- 
nized injuries  involving  pecuniary  or  temporal  loss.  It  no- 
where appears  that  the  temporal  courts  recognized  any  right  to 
reputation,  and  it  is  entirely  consistent  with  all  our  knowledge 
of  the  law  to  assert  that  in  theory  at  least  the  temporal  courts 
of  England  never  did,  and,  as  the  law  in  this  respect  has  not 
been  changed,  they  do  not  now  recognize  reputation  as  a  right 
which  the  law  protects.  And  if  this  be  so  in  England,  then  is 
it  so  in  the  United  States.  When  we  consider  that  "  falsely 
and  maliciously  to  impute,  in  the  coarsest  terms  and  on  the 
most  public  occasion,  want  of  chastity  to  a  woman  of  high  sta- 


41  See  note  14,  ante.  Daniel  O'Connell,  in  1834,  proposed  a  bill  in  the  Eng- 
lish Parliament  intended,  amongst  other  things,  to  assimilate  libel  to  slander  as 
to  what  language  should  give  a  right  of  action.  See  this  Bill  commented  upon, 
XI  London  Law  Mag.  432. 


GIST   OF   ACTION.  57 

tion  and  unspotted  character,  or  want  of  veracity  or  courage  to 
a  gentleman  of  undoubted  honesty  and  honor,  cannot  be  made 
the  foundation  of  any  proceeding  civil  or  criminal ;  whereas  an 
action  may  be  maintained  for  saying  that  a  cobbler  is  unskillful 
in  mending  shoes,  or  that  any  one  has  held  up  his  hand  in  a 
threatening  posture  to  another,"42  it  would  seem  to  need  nothing 
more  to  satisfy  the  most  skeptical  that  the  protection  is  to  the 
property  and  not  to  the  reputation.  We  conclude,  therefore, 
to  state  as  law,  that  pecuniary  loss  to  the  plaintiff  is  the  gist  of 
the  action  for  slander  or  libel.  If  the  language  published  has 
not  occasioned  the  plaintiff  pecuniary  loss  (actual  or  implied), 
then  no  action  can  be  maintained.^     Let  us  not  be  misunder- 


42  Report  of  Committee  of  House  of  Lords  on  Defamation  and  Libel,  July, 
1843. 

43  In  a  note  to  the  "  Preliminary  Discourse  "  to  the  American  edition  of  Star- 
kie  on  Slander,  after  referring  to  the  Roman  law  as  making  personal  contumely  and 
insult  the  essence  of  the  offence  of  slander,  adds:  "This,  it  will  be  seen,  is  a  cir- 
cumstance which  constitutes  a  very  essential  and  characteristic  distinction  be- 
tween the  law  of  England  and  that  of  Rome,  and  of  those  countries  which  have 
adopted  the  civil  law ;  *  *  *  for  the  law  of  England  has  from  very  distant 
times  considered  the  temporal  injury  to  a  man's  estate  and  not  the  contumely  or 
insult  of  the  agent  as  the  ground  of  compelling  reparation  in  damages."  Prelim. 
Disc.  vii.  "  There  must  be  some  certain  or  probable  temporal  loss  or  damage  to 
make  words  actionable ;"  this  was  said  of  oral  words  by  De  Grey,  C.  J.,  in  Onslow 
v.  Home,  3  Wils.  177,  and  this  was  approved  by  Lawrence,  J.,  in  Holt  v.  Schole- 
field,  6  T.  R.  691.  And  per  Bayley,  J.,  in  Whittaker  v.  Bradley,  7  D.  &  R.  649 : 
"  The  principle  on  which  this  species  of  action  (action  for  saying  orally  plaintiff, 
an  innkeeper,  was  a  bankrupt)  is,  that  the  slander  has  the  effect  of  producing 
temporal  damage  to  the  party  complaining."  To  maintain  the  action  there  must 
be  injury  to  the  plaintiff.  Ellenborough,  Ch.  J.,  Maitland  v.  Goldney,  2  East, 
426.  An  action  on  the  case  is  not  maintainable  in  any  case  without  showing 
especial  prejudice.     Lowe  v.  Harwood,  Cro.  Car.  140  S.  C. ;  Palmer,  529 ;  Ley,  82. 

Reputation  or  fame  is  under  the  protection  of  the  law,  because  all  persons 
have  an  interest  in  their  good  name,  and  scandal  and  defamation  are  injurious  to 
it,  though  defamatory  words  are  not  actionable  otherwise  than  as  they  are  a  dam- 
age to  the  estate  of  the  person  injured.  Wood's  Ins.  37  ;  Jacob's  Law  Diet.,  voce 
Reputation  or  Fame. 

"  In  England,  by  the  common  law,  defamatory  words  are  not  actionable,  other- 
wise than  as  they  are  a  damage  to  the  estate  of  the  person  injured."  Wood's 
Civil  Law,  244,  note.  "  I  am  not  certain,"  says  Lord  Kames,  "  that  in  England 
any  verbal  injury  is  actionable  except  such  as  may  be  attended  with  pecuniary 


58  GIST   OF   ACTION. 

stood.  We  concede  all  that  can  be  urged  as  to  the  value  of  a 
"  good  reputation."  We  believe,  like  Lord  Bacon,  that  "  men's 
reputations  are  tender  things,  and  ought  to  be  like  Christ's  coat, 
without  seam."44  "We  do  not  intend  to  deny  that  the  law  does 
in  fact,  and  to  a  great  extent,  protect  reputation,  but  we  intend 
to  be  understood  as  insisting  that  where  the  law  does  protect 
reputation  it  does  so  indirectly  by  means  of  a  fiction — an  as- 
sumption of  pecuniary  loss.  In  theory,  the  action  for  slander 
or  libel  is  always  for  the  pecuniary  injury  and  not  for  the  in- 


loss  or  damage.  If  not  we  in  Scotland  are  more  delicate.  Scandal,  or  any  imputation 
upon  a  man's  good  name,  may  be  sued  before  the  commissaries,  even  when  the 
scandal  is  of  such  a  nature  that  it  cannot  be  the  occasion  of  any  pecuniary  loss. 
It  is  sufficient  to  say,  I  am  hurt  in  my  character."     Historical  Law  Tracts,  p.  225. 

"  The  party  injured  [by  libel]  may  no  doubt  bring  an  action  on  the  case.  This 
process,  however,  is  not  competent  unless  it  is  grounded  on  an  actual  loss,  which 
must  be  shown  to  have  been  sustained."  Borthwick  on  Libel,  4.  In 
Boldroe  v.  Porter,  Yelv.  20,  the  declaration  alleged  per  quod  the  plaintiff  was 
in  danger  to  lose  her  goods  and  life.  In  Edward's  Case,  Cro.  Eliz.  <3,  held  the 
charge  actionable,  and  assigned  as  the  reason  that  "  by  such  speech  the  plaintiff's 
good  name  is  impaired."  In  Button  v.  Heywood,  8  Mod.  24,  Fortesque,  J.,  observed : 
"  It  was  the  rule  of  Holt,  Ch.  J.,  to  make  words  actionable  whenever  they  sound 
to  the  disreputation  of  the  person  of  whom  they  were  spoken,  and  tbis  was  also 
Hale's  and  Twisden's  rule,  and  I  think  it  a  very  good  rule." 

"  I  will  cite  rights  to  forbearances  merely.  A  man's  right  or  interest  in  his 
good  name  is  a  right  which  avails  against  persons  as  considered  generally  and  in- 
determinately. They  are  bound  to  forbear  from  such  imputations  against  him  as 
would  amount  to  injuries  towards  his  right  in  his  reputation.  But  though  the 
right  is  a  real  right,  there  is  no  subject,  thing,  or  person  over  which  it  can  be  said 
to  exist.  If  the  right  has  any  subject,  its  subject  consists  of  the  contingent  ad- 
vantages which  he  may  possibly  derive  from  the  approbation  of  others.  2  Aus- 
tin's Lect.  Juris.,  51.  Pdght  to  reputation  maybe  classed  with  property.  It  is  a 
right  to  the  chance  of  the  favorable  opinion  and  the  good  offices  of  others.  There 
is  no  obligation  to  do  me  good,  but  an  obligation  to  forbear  from  lessening  the 
chance  of  deriving  good  from  voluntary  service,  Ac.  2  id.  479,  and  3  id.  179, 
184. 

44  Lord  Bacon's  Charge  against  Lumsden.  Good  reputation  has  ever  been,  as 
it  is  now,  of  great  value  as  a  shield  against  imputation  of  crime ;  by  a  law  of  Wil- 
liam the  Conqueror,  if  a  man  of  good  reputation  was  charged  with  theft,  he  might 
clear  himself  by  his  single  oath.  Leges  Gul.  Conq.  14,  in  the  Ancient  Laws  and 
Institutes  published  by  the  English  Record  Commissioners.  See  Anthon's  Law 
Student,  Thesis  x. :  Character,  how  far  a  Universal  Shield.  Also.  McXally's 
Crim.  Ed.  573. 


GIST   OF   ACTION.  59 

jury  to  the  reputation.  There  are  many  such  fictions  introduced 
into  the  administration  of  the  law,  by  means  of  which,  without 
changing  the  rule  of  law,  the  law  is,  in  effect,  changed.45  "When 
this  is  the  case  this  difficulty  arises :  Shall  the  rule  be  stated  as 
it  is  in  theory  or  as  it  is  in  effect  ?  and  then  this  further  diffi- 
culty, that  these  two  phases  of  the  same  rule  are  sometimes 
stated  as  two  distinct  rules,  and  the  rule  being  stated  sometimes 
one  way  and  sometimes  the  other  creates  confusion  and  appa- 
rent contradiction.  It  may  be  that  practically  it  is  the  same 
thing  whether  the  remedy  is  given  by  law  for  the  injury  to  the 
reputation  or  for  the  pecuniary  injury  by  means  of  an  attack 
on  the  reputation ;  but  in  reasoning  on  this,  as  on  any  other 
subject,  it  makes  all  the  difference  whether  we  start  with  the 
true  principle  or  a  false  one.  With  a  false  premise  we  may 
arrive  at  a  conclusion  which  is  true,  but  we  can  never,  under 
such  circumstances,  be  sure  that  our  conclusion  is  true. 

§  58.  Among  the  fictions  referred  to  in  the  last  preceding 
section,  perhaps  the  most  noticeable,  and  the  one  which  best 
illustrates  our  meaning,  is  that  by  which  more  than  nominal 
damages  are  recovered  by  a  parent  for  the  seduction  of  a 
daughter.  At  the  present  day  no  lawyer  doubts  that  at  com- 
mon law  no  action  could  be  maintained  for  the  seduction  of  a 
daughter,  merely  as  a  daughter,  nor  merely  for  the  seduction. 
But  at  common  law,  to  deprive  one  of  the  services  of  his  hired 
servant  gave  a  cause  of  action,  because  it  occasioned  a  pecuni- 
ary injury.  The  common  law  gave  a  parent  a  right  to  the 
services  of  his  minor  children ;  then,  in  order  to  afford  a  rem- 
edy for  seduction,  which  was  not  contemplated  by  the  common 
law,  the  daughter  is  styled  servant,  and  the  remedy  is  given  in 
theory,  not  for  the  grief  and  shame  of  the  seduction,  but  be- 
cause by  means  of  the  seduction  the  servant  was  the  less  able 
to  perform  the  sendees  required  of  her,  and  the  parent  thereby 
sustained  a  pecuniary  loss.46     This  was  the  first  step  ;  and  where 

45  See  Maine,  Ancient  Law,  26. 

40  There  can  be  no  doubt  that  the  law  is  as  above  stated  (Knight  v.  Wilcox,  14 
N.  Y.  413);  and  yet  it  is  but  candid  to  say  that  there  are  dicta  to  the  effect  that 


60  GIST   OF   ACTION. 

the  daughter  was  in  fact  one  of  the  parent's  household,  the 
change  from  the  stafois  of  daughter  to  servant  was  easy  enough. 
The  next  step  was  where  the  infant  daughter  was  not  in  fact 
one  of  the  parent's  household,  but  was  in  the  service  of  another, 
by  her  own  contract,  and  not  by  the  contract  of  the  parent ; 
then  the  action  was  allowed  on  these  grounds :  the  daughter, 
being  an  infant,  could  not  lawfully  contract  for  her  services, 
therefore  the  parent  could  at  will  rescind  the  contract  and  take 
the  daughter  to  the  parental  service ;  but  if  the  parent  did  so, 
the  servant  would  be  less  efficient,  and  so  a  pecuniary  injury 
might  or  did  result.  The  next  and  final  step  thus  far  is,  that 
where  the  infant  daughter  was  by  the  contract  of  the  parent 
the  servant  of  another,  still  the  action  can  be  maintained  if 
the  seducer  by  his  fraud  had  procured  the  making  of  the  con- 
tract, and  this  on  the  ground  that  the  fraud  vitiated  the  con- 
tract and  leaves  the  parent  an  option  to  reclaim  the  daughter's 
services.47 

§  59.  By  similar  processes  to  those  detailed  in  the  last  pre- 
ceding section  it  has  come  to  pass  that  the  remedy  for  injuries 
by  language,  in  theory  given  only  to  redress  a  pecuniary  loss, 
is  now  applied  to  and  embraces  cases  in  which  no  pecuniary 
loss  is  or  can  be  shown  to  have  occurred.  The  process  by  which 
this  result  has  been  arrived  at  is  by  adopting  the  rule  of  evi- 
dence above  referred  to  (§  56),  that  certain  language  is  per  se, 
and  without  other  evidence,  conclusive  proof  of  pecuniary  loss ; 
this,  however,  is  only  a  rule  of  evidence,  and  the  rule  of  right 
remains  intact — that  a  pecuniary  loss  must  be  shown  to  entitle 
to  a  remedy.    That  the  rule  is  so  is  demonstrated  by  the  case  of 

the  mortification  and  disgrace  and  wounded  feelings  constitute  the  gravamen  of 
the  action.     See  Bade/ley  v.  Becker,  44  Barb.  577,  and  cases  there  cited. 

47  See  Lipe  v.  Eisenlerd,  32  N.  Y.  229;  White  v.  Nellis,  31  N.  Y.  405;  Bain  v. 
Wyckoff,  18  N.  Y.  45  ;  S.G.I  K  Y.  191 ;  Mulvehall  v.  Milward,  11  N.  Y.  343 ; 
Bartley  v.  Richtmeyer,  4  N.  Y.  38  ;  Knight  y.  Wilcox,  14  N.  Y.  413 ;  Harpur  v. 
Luffkin,  7  B.  &  C.  387;  1  M.  &  R.  166.  This  last  case  is  a  noticeable  instance  of 
how  far  courts  will  in  effect  depart  from  the  rule  of  law  while  they  uphold  it  in 
the  letter. 


GIST   OF   ACTION.  61 

words  to  which  the  rule  of  evidence  just  referred  to  does  not 
apply,  or  to  words  which  are  said  not  to  be  actionable 
per  se,  that  is,  which  are  not  per  se  evidence  of  pecuniary  loss. 
As  to  these,  it  has  never  been  doubted  that  a  pecuniary  loss 
must  be  shown  to  entitle  the  plaintiff  to  a  remedy.48 

48  Beach  v.  Ranney,  2  Hill,  309 ;  Herrick  v.  Lapham,  10  Johns.  291 ;  Hal- 
lock  v.  Miller,  2  Barb.  630 ;  Hersh  v.  Ringwalt,  3  Yeates,  508.  "  The  real  founda- 
tion of  the  action  [for  libel]  is  the  right  to  recover  pecuniary  satisfaction." 
(Viele  v.  Gray,  10  Abb.  Fr.  R.  7.)  The  special  damage  must  be  of  a  pecuniary 
nature.     (Beach  v.  Ranney,  2  Hill,  309.)     And  see  note,  33  ante. 


CHAPTER     V. 

WRONGFUL   ACTS.      ELEMENTS   OF   A   WRONG. 

Wrongful  Acts.  Liability.  Presumptions  of  Law.  Questions 
of  Law  and  Fact.  Essential  Acts  in  Slander  and  Libel. 
Defamatory.  Fcdsity.  Voluntary.  Involuntary.  Inten- 
tion.    Malice. 

§  60.  Although  we  are  unable  to  predicate  of  any  aether  se 
whether  or  not  it  is  a  wrong  (§  51),  we  may,  at  least  as  to  some 
acts,  determine  o£  them  per  se  whether  or  not  they  are  wrong- 
fid. 

§  61.  An  act  is  wrongful  which  as  a  necessary  or  as  a  natu- 
ral and  proximate  consequence  occasions  hurt  of  body  or  pecu- 
niary loss  to  another  than  the  actor.  When  the  necessary  con- 
sequences of  the  act  must  be  hurt  of  body  or  pecuniary  loss, 
then  the  act  is  patently  wrongful,  or  wrongful  per  se.  When 
the  act  is  one  the  consequences  of  which  are  not  necessarily 
hurtful  to  the  person  or  property  of  another,  but  is  an  act  the 
natural  and  proximate  consequences  of  which  may  occasion  hurt 
to  the  person  or  property  of  another,  then  it  is  latently  wrong- 
ful. It  is  wrongful  provided  that  as  a  natural  and  proximate 
consequence  there  ensues  personal  hurt  or  pecuniary  loss  to 
another.  One  and  the  same  act  may  occasion  harm  to  the  per- 
son and  loss  of  property  of  another,  and  either  by  its  necessary 
or  its  natural  and  proximate  consequences,  or  both.  It  is  not 
always  easy  to  determine  what  are  necessary  and  natural  and 
proximate  consequences,  and  to  distinguish  them  from  those 
which  are  not  necessary,  not  natural,  or  not  proximate  {remote) 
consequences.  The  rules  for  making  this  determination  and 
distinction  will  be  hereafter  considered.  We  have  here  but  to 
remark  that  the  necessary,  natural,  and  proximate  consequences 
of  an  act  are  those  of  which  alone  the  law  takes  cognizance,  and 


WKONGFUL  ACTS.  63 

these  it  is  which  constitute  in  legal  phraseology  damage  or 
inj  ury.  Any  consequence  which  is  neither  necessary  nor  natural 
and  proximate  is  disregarded  in  law. 

§  62.  No  act,  but  a  wrongful  act,  ean  become  a  wrong  ;  but 
every  wrongful  act,  in  the  absence  of  any  excuse  for  it  being 
shown,  is  prima  facie  a  wrong.  It  is  a  wrong  provisionally  or 
conditionally  ;  that  is  to  say,  it  is  regarded  for  all  purposes  as  a 
wrong,  unless  and  until  a  legal  excuse  for  the  doing  it  is  shown. 
That  which  does  not  exist  and  that  which  is  not  shown  to  exist 
are  the  same.  A  legal  excuse  not  shown  to  exist  is  the  same  as 
though  no  legal  excuse  existed.  The  burden  of  showing  the 
existence  of  a  legal  excuse  or  a  defence  is  always  upon  the  doer 
of  the  wrongful  act. 

§  63.  Anything  which  must  be  shown  to  establish  a  legal 
excuse  or  a  defence  is  no  part  of  the  essential  element  of  a 
wrong.  In  practice,  to  entitle  to  a  remedy,  it  is  required  only 
to  show  a  wrongful  act  done,  and  nothing  more  appearing,  the 
right  to  the  remedy  follows  as  of  course.  Reason  and  expe- 
diency alike  demand  that  in  this  respect  the  theory  should  dor- 
respond  to  the  practice. 

§  64.  Legal  excuses  are  of  two  kinds — such  as  constitute  an 
absolute  bar  or  defence  to  the  act,  or  such  as  constitute  a  con- 
ditional defence.  A  legal  excuse  of  the  latter  kind  is  a  defence, 
until  some  additional  fact  is  shown  which  takes  from  it  the 
character  of  a  legal  excuse.  The  legal  excuse  that  the  lan- 
guage was  spoken  by  a  judge  as  such,  or  by  a  witness  as  such, 
is  of  the  first  or  absolute  kind.  The  legal  excuse  that  the  lan- 
guage was  published  to  one  who  was  interested  to  know  it  and 
with  a  belief  that  it  was  true  is  a  legal  excuse  of  the  second  or 
qualified  kind .  T^he  excuse  exists  only  provided  it  does  not 
appear  that  the  language  was  published  not  believing  it  to  be 
true,  or  published  to  one  not  interested  to  know  it. 

,^  65.  There  is  this  distinction  between  legal  excuse  and  de- 
fence.    Legal  excuse  is  such  a  state  of  facts  ae  prevents  a  wrong- 


64  WRONGFUL   ACTS. 

ful  act  amounting  to  a  wrong.  Defence  includes  legal  excuse 
and  more ;  namely,  those  cases  in  which  the  wrong  is  admitted 
to  have  been  done,  but  where,  from  some  circumstance,  such  as 
the  statute  of  limitations,  or  satisfaction,  or  in  the  action  for 
libel  the  truth  of  the  language  published,  the  plaintiff  has  for- 
feited or  waived  his  right  of  action. 

§  66.  The  question  what  constitutes  a  wrong  or  when  has  a 
wrong  been  committed,  and  the  question  who  is  liable  therefor, 
are  essentially  distinct  questions,  and  to  be  determined  by  differ- 
ent rules. 

§  67.  As  regards  liability,  no  one  is  responsible  for  involun- 
tary acts,49  nor  for  any  other  than  tcrongful  acts  (§  62).  All 
who  without  legal  excuse  concur  in  a  wrongful  act  are  alike 
liable  either  jointly  or  separately.  No  one  can  excuse  his  con- 
currence in  a  wrongful  act  merely  on  the  ground  that  in  what 
he  did  he  acted  as  agent  for  another.50     It  sometimes  happens 


49  A  man  must  will  an  act  before  he  can  be  responsible  for  it.  (Wood's  Civil 
Law,  18.)  No  action  lies  for  an  inevitable  accident.  {Harvey  v.  Dunlop,Hi\\  & 
Denio,  Sup.  193  ;  see  Center  v.  Finney,  17  Barb.  94,  affirmed  2  Selden's  notes,  44.) 
No  man  is  liable  civilly  or  criminally  for  a  purely  accidental  mischief;  that  is 
to  say,  for  the  consequences  of  an  act  not  his  own  which  he  was  unable  to  foresee, 
or,  foreseeing,  was  unable  to  prevent.  (2  Austin's  Lect.  Juris.  165,  167.)  The 
act  must  be  intentionally  done ;  the  meaning  of  which  is,  that  the  defendant 
shoidd  know  what  he  published,  for,  as  in  the  case  put  by  Starkie,  if  a  servant 
should  deliver  a  sealed  letter  containing  the  defamatory  matter  without  knowing 
its  contents,  he  would  not,  though  the  actual  instrument  of  publication,  be  liable 
to  an  action.  (Daly,  F.  J.,  Viele  v.  Gray,  10  Abb.Pr.  R.  7;  18  How.  Pr.  R.  550.)  If 
published  inadvertently  it  would  not  be  a  libeL  {Rex  v.  Abingdon,  1  Esp.  Cas. 
228.)  Being  the  sale  of  a  few  copies  of  a  periodical  journal  containing  the  libel, 
it  was  for  the  jury  to  say  if  the  defendants  were  cognizant  of  what  they  sold. 
{Chubb  v.  Flannagan,  6  C.  <fe  P.  431.)  Since  intention  and  will  are  essential  to 
every  act,  and  intention,  will,  and  malice  to  every  crime,  the  absence  of  any  in- 
tention or  will  will  prevent  any  occurrence  from  being  an  action,  and  the  absence 
of  malice  *  *  *  will  prevent  any  action  from  being  a  crime.  (Stephen 
Crim.  Law,  85.) 

50  If  a  person  does  an  act  with  a  guilty  intent,  he  is  not  the  agent  of  any  one. 
If  he  does  it  innocently,  he  is  the  agent  of  some  person  or  persons,  and  if  two  have 
agreed  to  employ  him,  he  is  the  agent  of  both.  Alderson  B.,  Reg.  v.  Bull,  7  Law 
Times  (London),  8. 


ELEMENTS   OF   A  WRONG.  65 

that  those  who  are  in  nowise  concerned  in  the  actual  doing  of  a 
wrongful  act,  or  a  wrong,  are  nevertheless  liable  therefor ;  this, 
be  it  observed,  is  not  on  account  of  any  presumed  connection  with 
the  act,  but  because  under  the  circumstances  they  are  legally 
responsible  for  the  acts  of  the  actual  wrongdoers.51  It  may  also 
occur  that  the  one  who  actually  does  the  act  may  not  be  liable, 
while  for  that  same  act  another  may  be  liable.52 

§  68.  The  proposition  that  one  is  liable  for  his  wrongful 
act  implies,  in  terms,  liability  for  the  necessary,  natural,  and 
proximate  consequences  of  the  act.  This  leaves  no  room  for 
any  question  as  to  the  intent  with  which  the  act  is  clone.  There 
may  or  may  not  be  any  intent,  good  or  bad ;  but  intent  or  no 
intent,  the  liability  is  for  the  act  and  its  consequences,  not  for 
the  intent.  Intent  without  an  act  cannot  constitute  a  wrong. 
The  liability  may  be  avoided  only  by  showing  some  defence. 
Showing  the  act  to  have  been  done  with  a  good  intent  would 
not  be  a  defence.  The  consequences  of  an  act  are  incidents  to 
the  act  and  inseparable  from  the  act.  Liability  for  the  one  is 
inseparable  from  liability  for  the  other.  The  usual  ground  upon 
which  this  liability  for  the  consequences  of  an  act  is  placed  is, 
that  the  law  presumes  every  one  to  intend  the  necessary  and 
natural  consequences  of  his  acts.53  We  object  to  the  phrase, 
the  law  presumes.  The  law  does  not  presume.54  We  know  it 
is  customary  to  say  that  the  law  presumes  every  one  inno- 

61  See  post,  Publisher. 

52  See  ante,  note  49,  and  post,  Publisher. 

63  The  law  presumes  a  party  to  intend  the  injury  his  acts  are  calculated  to  pro- 
duce. {Haire  v.  Wilson,  9  B.  <fc  Cr.  643 ;  Viele  v.  Gray,  10  Abb.  Pr.  R.  7,  and 
series  of  dicta.)  A  man  is  as  much  answerable  for  the  probable  consequences  of 
his  act  as  for  the  actual  object.     (Hex  v.  Moore,  3  B.  &,  A.  184.) 

5''  We  are  not  unmindful  of  the  fact  that  the  books  are  full  of  such  expressions 
as  the  law  presumes,  presumption  of  law,  &c.  But  the  phrase  is  objectionable 
and  should  be  reformed.  Burrill  says  the  presumption  is  rather  an  assumption. 
(Presump.  Ev.  10,  43;  and  see  6  Lond.  Law  Mag.,  354.)  The  inference,  for  it  is 
absurd  to  call  it  a  presumption.  (Stephen  Crim.  Law,  182.)  Counsel:  It  must 
be  assumed  that  the  trustee  will  do  his  duty.  Pollock,  Ch.  B.  We  must  assume 
nothing  either  way,  but  he  may  not.  (Boulnois  v.  Mann,  l'Law  Reports,  Ex.  30.) 
5 


66  WRONGFUL   ACTS. 

cent ;  every  one  of  good  repute  ;  every  wrongful  act  to  be  mali- 
cious ;  every  one  to  intend  the  consequences  of  his  acts,  &c. 
But  it  is  not  so.  If  one  is  accused  of  wrong,  the  law  requires 
proof  of  his  guilt ;  not  because  it  presumes  him  innocent,  but 
because  it  does  not  presume  him  guilty,  and  requires  the  fact  to 
be  proved.  One  complaining  of  injury  to  his  reputation  is  not 
required  to  prove  it  good  because  the  law  presumes  it  good, 
but  because  the  law  does  not  presume  it  bad.  On  proof  of  a 
wrongful  act  the  law  will  punish  it  as  a  wrong,  not  because  it 
presumes  it  malicious,  but  because  it  does  not  presume  there 
was  any  legal  excuse  for  doing  the  act.  It  may  be  a  wrong, 
and  if  it  is  not,  the  burden  of  showing  the  legal  excuse  to  exist 
is  on  the  actor,  or  whoever  is  liable  for  the  act.  One  is  liable 
for  the  consequences  of  his  acts  because  the  law  will  not  pre- 
sume the  actor  intended  any  other  than  the  consequences  of  his 
act,  not  because  the  law  presumes  any  intention.  It  would  be 
as  illogical  and  unfair  to  presume  that  one  did  not  intend  to  do 
exactly  what  he  has  done,  as  it  would  be  unwise  to  allow  one 
to  say  he  did  not  intend  what  he  has  done. 

§  69.  In  every  transaction  brought  before  a  court  of  law  for 
adjudication  two  questions  always  arise  :  (1)  what  are  the  facts, 
and  (2)  what  is  the  law  applicable  to  those  facts  ?  The  court 
always  decides  the  questions  of  law.  Some  questions  of  fact 
are  decided  by  the  court  and  some  by  the  jury.55     Courts  con- 


55  For  twelve  honest  men  have  decided  the  cause 
Who  are  judges  alike  of  the  facts  and  the  laws. 

From  a  political  ballad  by  Alderman  Glover,  called  "Hosier's  Ghost."  In 
"Political  Ballads  of  the  17th  and  18th  Centuries,"  by  W.  Walker  WilMns,  Lon- 
don, 1860;  also  to  be  found  in  a  work  entitled  "England  Under  the  House  of 
Hanover,"  by  Wright.  On  the  motion  for  a  new  trial  in  the  case  of  the  Dean  of 
St.  Asaph,  Lord  Mansfield  cited  the  above  lines  as  thus : 

For  twelve  honest  men  have  decided  the  cause 
Who  are  judges  of  facts,  though  not  judges  of  laws. 

He  attributed  the  authorship  to  Mr.  Pulteny,  and  as  written  on  the  occasion 
of  the  failure  of  the  prosecution  against  "The  Craftsman."  (See  21  State  Trials, 
847,  1046;  IT  id.  625;  Forsyth's  Hist,  of  Trial  by  Jury,  272.) 


ELEMENTS   OF   A   WRONG.  67 

trol  the  decisions  of  juries  on  questions  of  fact.56  (1)  By  de- 
termining whether  or  not  the  evidence  adduced  tends  any  way 
to  prove  the  fact  in  issue ;  whether  there  is  some  evidence  or  no 
evidence.  (2)  By  deciding  in  some  cases  that  certain  estab- 
lished facts  warrant  or  do  not  warrant  certain  inferences  and 
requiring  the  jury  to  accept  such  inferences  as  proved.  (3)  By 
deciding  what  evidence  is  to  be  regarded  and  what  disregarded, 
whether  as  going  to  prove  or  disprove  a  fact  or  to  affect  dama- 
ges. (4)  By  granting  new  trials  when  they  deem  the  verdict  as 
contrary  to  or  as  against  evidence,  or  the  damages  excessive  or 
inadequate.  The  connection  between  one  fact  and  another,  as 
cause  and  effect,  is  always  a  question  of  fact.  It  is  the  degree  of 
probability  of  such  connection  which  leads  courts  to  determine 
whether  they  decide  the  question,  or  whether  they  leave  it  to 
the  jury  to  decide.  (1)  If  one  event  is  very  generally  the  cause 
of  a  certain  other  event,  the  courts  lay  down  the  general  rule 
that  the  proof  of  the  one  event  is  the  proof  of  the  other,  and 
do  not  allow  juries  to  decide  contrariwise.  (2)  If  one  event  is 
often  but  not  so  generally  the  cause  of  a  certain  other  event,  then 
the  courts  leave  it  to  the  jury  in  each  case  to  decide  whether  or 
not  in  that  particular  case  that  certain  other  event  has  fol- 
lowed. 

The  necessary  consequences  of  an  act  always  follow  the  act, 
and  therefore  the  courts  pronounce  it  a  rule  of  evidence  that  the 
proof  of  the  act  is  proof  of  its  necessary  consequences,  and  the 
jury  may  not  find  otherwise.  The  natural  and  proximate  con- 
sequences of  an  act  do  often,  but  not  always,  follow  the  act ; 
therefore  the  jury  decide  in  each  case  whether  or  not  those  con- 
sequences have  followed  in  that  particular  case. 

§  70.  In  every  slander  there  are  two  acts,  (1)  the  composing 
and  (2)  the  publishing.     In  every  libel  there  are  three  acts :  (1) 

56  The  judge  put  back  the  jury  twice  because  they  offered  their  verdict  con- 
trary to  their  evidence.  (Clayton,  50.)  Instances  of  judges  taking  questions  of 
fact  out  of  hands  of  jury.  ( Wright  v.  Orient  Mut.  Ins.  Co.,  6  Bosw.  269  ;  Welts 
v.  Corn.  Mut.  Ins.  Co.,  46  Barb.  413  ;  Clarke  v.  Rankin,  46  Barb.  571,  and  numer- 
ous cases. )  Juries  are  assistants  to  the  courts  in  determining  some  issues  of  fact. 
(Forsyth's  Hist.  Trial  by  Jury.) 


68  WRONGFUL   ACTS. 

the  composing,  (2)  the  writing,  and  (3)  the  publishing.  The 
act  which  is  the  essential  element  in  the  wrongs  slander  and 
libel,  is  a  wrongful  publication  of  language,  and  the  general 
prohibition  (§  49)  as  applicable  to  those  wrongs  would  be :  No 
one  shall,  without  legal  excuse,  publish  language  concerning 
another  or  his  affairs  which  shall  occasion  him  damage.  In 
other  words :  Every  publication  of  language  concerning  a  man 
or  his  affairs  which  as  a  necessary  or  natural  and  proximate  con- 
sequence occasions  pecuniary  loss  to  another,  is  prima  facie  a 
slander  or  a  libel — a  slander,  if  the  publication  be  oral ;  a  libel, 
if  the  publication  be  by  writing.  This,  it  must  be  remembered, 
is  not  a  description,  much  less  a  definition  of  a  slander  or  a 
libel,  but  merely  a  description  of  what  is  prima,  facie  a  slander 
or  a  libel. 

§  71.  In  describing  or  defining  a  slander  or  a  libel,  it  is  cus- 
tomary to  enumerate  among  its  requisites  (1)  that  the  language 
must  be  defamatory,  (2)  and  false,  and  (3)  that  the  publication 
must  be  with  malice,  or  made  maliciously.  We  shall  endeavor 
to  give  sufficient  reasons  for  omitting  these  three  supposed  re- 
quisites from  our  description. 

§  72.  To  constitute  a  slander  or  libel  must  the  language  be 
defamatory  ?  This  question  suggests  others  :  What  is  meant  by 
defamatory  ?  Does  defamatory  mean  more  than  discommend- 
atory?  It  appears  to  us  that  to  say  the  language  must  be  de- 
famatory, is  only  stating  a  portion  of  what  is  implied  in  saying 
that  it  must  be  such  language  as  by  a  necessary  or  natural  and 
proximate  consequence  occasions  pecuniary  loss  to  him  whom, 
or  whose  affairs,  they  concern.  It  is  scarcely  conceivable  that 
any  other  than  discommendatory  language  can  by  a  necessary 
or  natural  and  proximate  consequence  occasion  damage ;  it  may 
therefore  not  be  improper  to  say  that  the  language  must  be  de- 
famatory, but  that  alone  does  not  express  so  much  as  is  implied 
in  the  requisite  of  occasioning  damage.  We  shall  hereafter 
have  occasion  to  advert  to  this  subject  more  in  detail.57 

51  "  But  if  the  matter  was  not  in  its  nature  defamatory,  the  rejection  of  the 


ELEMENTS    OF   A   WRONG.  69 

§  73.  To  constitute  a  slander  or  libel  must  the  language  be 
false  ?  If  the  language  is  true  it  is  a  defence  ; 58  but  it  does  not 
thence  follow  that  falsity  is  an  essential  element  of  the  wrong. 
"We  know  that  the  fact  of  the  language  being  true  is  not  alone 
an  answer  to  a  prosecution  for  a  libel  as  a  public  offence  ;  the 
fact,  then,  of  the  language  being  true  does  not  prevent  its 
amounting  to  a  wrong  (§  43).  To  say  that  showing  the  truth 
of  the  language  published  is  a  defence,  and  to  say  the  lan- 
guage must  be  false,  are  not  identical  propositions.  It  may  be 
correct  to  say  one  has  the  right  to  speak  the  truth,59  but  it  is  not 
correct  to  say  one  has  the  right  to  publish  the  truth  by  writing 
(§  43).  In  certain  cases,  as  will  hereafter  be  explained,  a  cause 
of  action  for  slander  or  libel  could  not  be  shown  without 
alleging  the  language  to  be  false  ;  but  in  the  ordinary  case  of 
language  concerning  the  person,  no  allegation  of  falsity  was 
required  to  show  a  cause  of  action.  In  the  latter  instance  the 
allegation  of  falsity  was  not  necessary  in  a  civil  action,  nor  even 
in  a  criminal  prosecution.60  But  where,  as  often  happened, 
the  language  was  alleged  to  be  concerning  the  person  and  also 
concerning  the  affairs,  then  the  allegation  of  falsity  became 
material.  The  approved  precedents  of  pleadings  all  contained 
the  allegation  of  falsity,  and  thus,  probably,  falsity  came  to  be 

plaintiff  cannot  be  considered  the  natural  result  of  the  speaking  of  the  words.  To 
make  the  speaking  of  the  words  wrongful,  they  must  in  their  nature  be  defama- 
tory." (Patteson,  J.,  Kelly  v.  Partington,  5  B.  &  Ad.  645,  and  to  the  same  effect 
see  Vicars  v.  Wilcocks,  1  East,  1;  Ashley  v.  Harrison,  1  Esp.  48 ;  Peake,  194.) 
"  We  cannot  have  a  definite  idea  of  a  design  to  injure  unconnected  with  some  de- 
gree of  probability  that  the  means  made  use  of  would  effect  the  design."  (Dur- 
ham v.  Musselman,  2  Blackf.  99.) 

58  "  The  truth  of  the  supposed  slander  is  in  effect  a  ground  of  justification, 
which  must  be  substantiated  by  the  defendant."  (1  Starkie  on  Libel,  9.)  To 
maintain  the  action  the  words  should  be  untrue.  (Ellenborough,  Ch.  J.,  Maitland 
v.  Goldney,  2  East,  426.) 

69  "Our  laws  allow  a  man  to  speak  the  truth,  although  it  be  done  maliciously." 
(Bronson,  J.,  Baum  v.  Clause,  5  Hill,  199 ;  and  to  the  like  effect,  Foss  v.  Hildreth, 
10  Allen,  16.) 

co  Bex  v.  Burke,  7  T.  R.  4,  and  if  falsity  is  alleged  it  -cannot  be  traversed 
(Lewis  v.  Allcock,  3  M.  &  W.  188  ;  S.  C.  6  Dowl.  Pr.  0.  389)   and  post,  Pleading. 


70  WRONGFUL    ACTS. 

regarded  as  essential  to  the  wrongs  and  to  the  descriptions  ol 
the  wrongs  slander  and  libel. 

In  those  cases  in  which  falsity  must  be  alleged  to  show  a 
cause  of  action,  then  the  language  cannot,  as  a  necessary 
or  natural  and  proximate  consequence,  occasion  a  pecuniary 
loss  unless  it  is  false ;  in  such  cases,  therefore,  if  not  in 
every  case,  the  requirement  that  the  publication  must,  as  a 
necessary  or  natural  and  proximate  consequence,  occasion  pecu- 
niary loss,  includes  the  requirement  that  the  language  be  false. 
As  will  appear  hereafter,  where  the  language  is  concerning  the 
person,  the  plaintiff  is  not  allowed  in  the  first  instance,  nor, 
except  to  disprove  a  defence  of  truth,  to  give  any  evidence  of 
the  falsity  of  the  language  published.61 

§  74.  To  constitute  a  slander  or  libel  must  the  publication 
of  the  language  be  with  malice  or  maliciously  ?  To  answer 
this  question  it  is  material  to  inquire  what  is  malice,  and  what 
is  meant  by  the  term  malice  as  used  in  the  text-books  and 
the  reports.62 

§  75.  We  have  seen  that  every  act  must  be  lawful  or  unlaw- 
ful (§  42).  Lawful,  such  as  has  a  legal  excuse ;  unlawful, 
such  as  has  not  a  legal  excuse.  Acts  done  without  lawful 
excuse  are  said  to  be  done  with  malice  or  to  be  malicious  acts. 
All  acts,  whether  lawful  or  unlawful,  must  be  voluntary  or 
involuntary.63 

61  2  Starkie  on  Libel,  59;  Stuart  v.  Lovell,  2  Starkie's  Cas.  93. 

62  How  much  bad  law  and  bad  philosophy  of  law  have  arisen  from  imperfect 
comprehension  of  the  terms  will,  motive,  intention  and  negligence,  may  be  seen 
in  the  nonsense  of  English  law  writers  concerning  malice.  Edinburgh  Re- 
view, Oct.,  1863,  p.  230,  Amer.  Reprint. 

63  "  I  purposely  abstain  from  the  use  of  the  words  voluntary  and  involuntary, 
on  account  of  the  extreme  ambiguity  of  their  signification.  By  a  voluntary  act 
is  meant  sometimes  an  act  in  the  performance  of  which  the  will  has  had  any 
concern  at  all — in  this  sense,  it  is  synonymous  to  '  intentional ' — sometimes  it 
means  uncoerced,  and  sometimes  spontaneous."  Bentham's  Principles  of  Morals 
and  Legislation,  22,  79,  81,  and  see  2  Austin's  Lect.  Juris.  88. 


ELEMENTS   OF   A   WRONG.  71 

§  76.  A  voluntary  act  is  an  act  done  under  no  legal  or 
other  obligation  to  perform  it,  and  which  the  actor  may  do  or 
forbear  at  his  option,  as  an  act  done  in  the  exercise  of  a  right. 
An  act  done  with  a  consciousness  or  knowledge  of  the  char- 
acter of  the  act,  or  under  such  circumstances  as  that  the  actor 
ought  to  know,  and  by  the  exercise  of  a  degree  of  care  propor- 
tionate to  the  exigencies  of  the  occasion  the  actor  might  know, 
the  character  of  the  act.  A  voluntary  act  does  not  mean  a 
mere  act  of  volition,  but  an  act  of  volition  coupled  with  a 
means  of  knowing  the  character  of  the  act  about  to  be  per- 
formed and  an  intention  to  do  that  very  act.64  It  is  the  act 
sometimes  called  an  intentional  act.  Every  act  is  prima  facie, 
and  without  more,  a  voluntary  act ;  it  is  regarded  for  all  pur- 
poses as  a  voluntary  act  unless  and  until  it  is  shown  to  be 
involuntary. 

§  77.  An  involuntary  act  is  an  act  done  under  circumstances 
which  permit  to  the  actor  no  option  as  to  whether  he  will  do 
or  forbear  the  act ;  an  act  done  under  some  legal  obligation  to 
perform  it  as  an  act  done  in  discharge  of  a  duty  ;  an  act  done 
under  duress ;  an  act  done  unconsciously  and  without  know- 
ledge as  to  the  character  of  the  act,  the  unconsciousness  not 
being  self-imposed  ;  and  the  act  done  without  the  opportunity, 
by  the  exercise  of  a  degree  of  care  proportioned  to  the  exigency 
of  the  occasion,  of  knowing  the  character  of  the  act. 

§  78.  Besides,  and  in  addition  to  the  intention  of  performing 
any  act,  there  may  be  an  intention  in  the  mind  of  the  actor  to 
accomplish,  by  means  of  the  act  done,  certain  ends,  or  to  produce 
certain  consequences.  Passing  over  the  metaphysical  distinctions 
between  will  and  intent  we  may  draw  a  distinct  line  of  demark- 
ation  between  the  intent  to  do  an  act  and  the  intent  to  produce 
the  consequences  of  the  act.     This  line  we  draw. 

§  79.  Intent  may  or  may  not,  in  fact,  be  synonymous  with 


64  "  An  act  of  the  will  is  the  same  as  an  act  of  choosing  or  choice."  Edwards 
on  the  Will,  pt.  1,  §  1 ;  commented  on  Hazard  on  the  Will,  17*7.  As  to  will  and 
intention  see  Stephen  Crim.  Law,  76. 


72  WRONGFUL   ACTS. 

motive,  but  we  desire  it  understood  that  we  use  intent  and 
motive  as  synonymous.  By  intent  we  mean  motive,  and  if  the 
term  motive  be  employed  instead  of  intent  it  must  be  divided 
as  we  have  divided  intent,  and  a  distinction  observed  between 
the  motive  for  doing  the  act  and  the  motive  to  produce  the  con- 
sequences of  the  act.  The  intent  or  motive  which  goes  towards 
the  doing  the  act  we  include  in  the  term  voluntary.  The  intent 
or  motive  which  refers  to  the  consequences  of  the  act  we  de- 
nominate intent  or  intention. 

§  80.  A  voluntary  act  may  be  done  without  any  intent  to 
produce  its  consequences,  and  an  involuntary  act  may  be  done 
with  an  intent  to  produce  its  consequences.65  In  the  cases  in 
which  there  exists  any  intent  to  do  more  than  commit  the  act 
itself,  the  intent  may  be  either  to  produce  all  or  some  of  the 
consequences  of  the  act,  or  to  produce  an  effect  not  a  conse- 
quence of  the  act  done.  As  one  is  responsible  only  for  the 
necessary  and  natural  and  proximate  consequences  of  his  acts, 
at  least  any  intent  to  produce  any  other  consequence  or  effect 
must  be  immaterial.  If  the  intent  is  at  all  material,  it  must  be 
the  intent  to  produce  the  necessary  and  natural  and  proximate 
consequences  of  the  act. 

§  81.  The  various  kinds  of  intents  with  which  an  act  may 
be  done  are  all  resolvable  into  two  classes,  (1)  an  intent  to 
injure  some  one,  (2)  an  intent  to  benefit  some  one.  The  one  to 
be  injured  or  benefited  may  be  the  actor  or  some  other.     One 


65  «  j^or  ^Qgg  ^g  nature  of  the  resulting  effect  make  any  difference  to  the 
moral  quality  or  character  of  the  effort.  A  man's  intentions  may  be  most  vir- 
tuous, and  yet  the  actual  consequences  of  his  efforts  be  most  pernicious.  *  * 
The  moral  nature  of  a  volition  is  not,  then,  in  any  way  affected  by  what  actually 
follows  that  volition."  (Hazard  on  the  Will,  154.)  "Feeling  that  will  implies 
intention,  numerous  writers  on  jurisprudence  employ  will  and  intention  as  synon- 
ymous. They  forget  that  intention  does  not  imply  will.  *  *  *  The  agent  may 
not  intend  a  consequence  of  his  act.  In  other  words,  when  the  agent  wills  the 
act  he  may  not  contemplate  the  given  event  as  a  consequence  of  the  act  which  he 
wills."  (2  Austin's  Lect.  Juris.  94.)  "It  is  perfectly  manifest  that  badness  or 
goodness  cannot  be  affirmed  of  the  will,  and  that  a  criminal  intention  may  accord 
with  a  good  disposition."     {Id.  133.) 


ELEMENTS   OF   A    WRONG.  73 

and  the  same  act  may  be  done  with  an  intent  to  injure  one  and 
benefit  another. 

§  82.  Intent  may  be  divided  into  general  and  particular. 
Particular  intent,  or  the  intent  with  which  any  certain  act 
may  be  done,  is  to  be  distinguished  from  the  general  intent. 
One  may  have  a  general  intent  to  injure  or  benefit  another,  and 
synchronously  with  that  intent  may  do  some  act  concern- 
ing that  other  without  any  reference  to  the  general  intent,  or 
without  any  particular  intent,  or  with  a  particular  intent  differ- 
ent from  or  contradictory  to  the  general  intent.  As  a  question 
of  probability,  the  particular  intent  will  follow  the  general,  but 
not  necessarily  so  ;  whether  it  does  or  does  not  is  in  every  case 
a  question  of  evidence. 

§  83.  Intent  or  intention  is  a  mental  conception — an  exist- 
ence. It  is  a  fact,66  impalpable,  intangible,  invisible,  but  never- 
theless a  fact.  The  existence  or  non-existence  of  an  intent  or 
an  intention  and  its  character  are  always  questions  of  fact. 
Save   the    declarations  of  the  individual  in  whose  mind   the 


66  The  existence  of  mind  is  as  much  a  matter  of  fact  as  the  existence  of  mat- 
ter. (Elementary  Sketches  of  Moral  Philosophy,  by  Sidney  Smith,  Introductory 
Lecture.)  Intention  is  a  fact.  (Cliftv.  White,  12  N.  Y.  538.)  A  witness  may 
be  asked  with  what  intent  he  did  an  act.  (Seymour  v.  Wilson,  14  N.  Y.  567  ; 
Griffin  v.  Marquardt,  21  N.  Y.  121 ;  Forbes  v.  Waller,  25  N.  Y.  439.)  But  his 
evidence  is  not  conclusive.  (Griffin  v.  Marquardt,  21  N.  Y.  121.)  And  it  seems 
this  question  is  not  permissible  in  certain  cases,  as  where  the  intent  may  be  or 
must  be  inferred  from  the  act.  ( The  People  v.  Saxton,  22  N.  Y.  309  ;  Parker  Mills 
v.  Jacot,  8  Bosw.  161 ;  Ballard  v.  Lockwood,  1  Daly,  164.)  We  are  not  aware 
of  the  right  to  put  the  question  as  to  intent  having  been  mooted  in  an  action  for 
slander  or  libel.  We  suppose  it  could  not  properly  be  put  in  any  action  for  slan- 
der or  libel,  because  we  are  of  opinion  the  question  of  mere  intent  can  never  be 
material  in  those  actions.  But  assuming  that  intent  is  or  may  be  material,  then 
the  question  might  be  put  in  connection  with  a  state  of  facts  which  discloses  a 
qualified  legal  excuse.  In  our  opinion  the  decisions  show  the  rule  to  be,  you  may 
inquire  into  the  intent,  directly,  as  by  inquiring  of  the  party,  in  cases  where 
the  intent  is  material  and  the  act  complained  of  is  as  consistent  with  a  good  in- 
tent as  with  a  bad  intent,  but  in  no  other  cases.  (See  supra,  and  Booth  v.  Sweezy, 
4  Selden,  281 ;  Ellis  v.  The  People,  21  How.  Pr.  R.  356  ;  Powis  v.  Smith,  5  B.  & 
A.  850.) 


74  WRONGFUL   ACTS. 

intent  is  supposed  to  exist,  we  can  have  no  direct  testimony  as 
to  the  existence  or  non-existence  of  any  intent,  or  its  character. 
Save  such  declarations  we  can  have  none  but  indirect  testimony. 
That  indirect  testimony  is  the  inference  we  may  draw  from  his 
acts.67 

§  84.  Not  technically,  but  in  reality,  when  the  intent  is  to 
injure  it  is  a  had  intent,  and  bad  intent  is  malice™  The  act  by 
means  of  which  a  bad  intent  is  sought  to  be  realized  is  a  mali- 
cious act,  and  the  act  is  done  maliciously. 

§  85.  Upon  reference  to  the  text-books  and  reports  to  dis- 


67  The  state  of  a  man's  mind  can  only  be  known  by  others  through  his  acts, 
through  his  own  declarations,  or  through  other  conduct  of  his  own.  (2  Austin's 
Lect.  Juris.  106.)  Previous  intentions  are  judged  by  subsequent  acts.  (Dumont 
v.  Smith,  4  Denio,  319,  320.)  The  intention  of  an  act  done  must  be  judged  by  its 
necessary  consequences.  Where  these  are  directly  pernicious  the  intent  to  work 
mischief  becomes  a  conclusion  of  law.  (Safford  v.  Wyckoff,  1  Hill,  11,  referring  to 
Reg.  v.  Boardman,  2  Moo.  &  Rob.  147,  148.)  Where  the  guilt  or  innocence  of  the 
act  depends  upon  the  motive  of  the  actor,  his  conduct  and  declarations  as  to  other 
similar  transactions  about  the  same  time  are  always  admissible  to  show  it.  {Bar- 
ren v.  Mason,  31  Verm.  (2  Shaw)  189  ;  Scanlan  v.  Cowley,  2  Hilton,  489  ;  Center  v. 
Spring,  2  Clarke  (Iowa),  393.) 

68  "  Hardly  any  word  in  the  whole  range  of  the  criminal  law  has  been  used  in 
such  various  and  conflicting  senses,  nor  is  there  any  which  it  is  more  important  to 
understand  correctly."  (Stephen  Crim.  Law,  81.)  The  etymological  meaning  of 
the  words  malice  and  malicious  is  simply  wickedness  and  wicked  (id.  82),  and  it 
will  be  found  in  practice  impossible  to  attach  to  these  terms  any  other  meaning. 
(id.)  "  I  apprehend  that  there  is  no  ground  for  distinguishing  between  the  legal 
and  the  popular  sense  of  the  word,  and  that  it  means  in  its  legal  sense  exactly 
what  it  means  in  its  popular  sense,  namely,  a  mischievous  design  or  intent  to  do 
an  injury  to  an  individual,  or  to  the  public."  (Daly,  F.  J.,  Viele  v.  Gray,  10 
Abb.  Pr.  R.  5  ;  18  How.  Pr.  R.  550.)  The  law  presumes  from  the  act  an  intent  to 
bring  about  its  consequences ;  "  to  denominate  this  intent  malice  or  malice  in 
law,  when  it  may  have  arisen  from  a  good  motive,  the  defendant  believing  what 
he  alleges  to  be  true,  is  to  employ  the  word  malice  in  a  sense  neither  justified  by 
its  etymology,  its  ordinary  meaning,  nor  its  previous  legal  signification."  (Id. ) 
The  difference  in  the  import  of  the  word  malice  in  legal  and  in  common  accept- 
ation is  commented  on  1*7  Howell's  State  Trials,  43,  63.  And  see  Sir  Thomas 
Moore's  distinction  between  Malitia  and  Malevolentia  (1  id.  391.),  and  remarks  on 
the  introduction  of  the  words  Falso  et  malitiose  into  indictments  for  libeL  (1  id. 
30;   6  id.  1113.) 


ELEMENTS   OF   A   WRONG.  75 

cover  the  meaning  in  use  of  the  terms  intent69  and  malice  we 
find: 

§  86.  As  respects  the  term  intent,  it  is  sometimes  employed 
to  signify  done  intentionally,  and  in  that  sense  is  equivalent  to 
will,  or  to  what  we  have  designated  voluntary  ;  sometimes 
employed  to  signify  an  intent  to  produce  the  consequences  or 
some  certain  consequences  by  means  of  the  act  done,  and  some- 
times employed  to  signify  bad  intent  or  bad  motive.  When 
employed  in  the  sense  of  will  or  intentionally  it  is  sometimes 
divided  into  express,  tacit,  presumed,  and  fictitious.70 

§  87.  As  respects  the  term  malice,  it  is  sometimes  employed 
to  signify  the  absence  of  legal  excuse,71  sometimes  as  meaning 
a  bad  or   wicked   motive   or   intent,72   sometimes   as  meaning 

69  "If  we  would  know  the  nature  of  wrongs,  we  must  try  to  determine  the 
meaning  of  intention  and  negligence  with  precision,  for  both  of  them  run  in  a 
continued  vein  through  the  doctrine  of  wrongs,  and  one  of  them,  intention,  meets 
us  at  every  step  in  every  department  of  jurisprudence.  (2  Austin's  Lect.  Juris.  80.) 
Unless  the  import  of  those  terms  are  determined  at  the  outset,  the  subsequent 
speculations  will  be  a  tissue  of  uncertain  talk.     (3  Id.  353.) 

70  See  Lindley's  Studies  of  Jurisprudence,  168,  §  18*7,  and  id.  App.  civ. 

71  Malice,  the  doing  any  act  without  a  just  cause.  (1  Chit.  Gen'l.  Pr.  46.) 
Malice  in  its  legal  sense  always  excludes  a  just  cause.  {Jones  v.  Givin,  Gilb. 
Cas.  185.)  It  is  a  technical  expression,  and  means  the  absence  of  any  excuse. 
(Penn.  v.  Lewis,  Addison  R.  282.)  It  is  implied  in  every  [wrongful]  act  for 
which  there  is  no  legal  justification,  excuse,  or  extenuation.  (Penn.  v.  Honey- 
man,  Addison  R.  149.)  A  term  of  law  denoting  directly  wickedness  and  exclud- 
ing just  cause  or  excuse.  (1  Russ.  Or.  483.)  A  wrongful  act,  done  intentionally, 
without  just  cause  or  excuse.  (Bromaye  v.  Prosser,  4  B.  &  C.  24*7.)  If  malice 
be  used  as  a  descriptive  term,  it  must  be  understood  of  malice  in  a  technical  and 
artificial  sense  as  merely  signifying  the  absence  of  any  legal  justification  or 
excuse.  (1  Starkie  on  Libel,  3.)  If  malice  be  used  as  descriptive  *  *  *  it  must 
be  understood  in  its  legal  and  technical  sense  as  merely  denoting  that  which  is 
inferred  from  the  doing  of  a  wrongful  act  without  lawful  justification  or  excuse. 
(Id.  213.)  Malice,  the  doing  any  act  injurious  to  another  without  just  cause. 
(Bouvier's  Law  Diet.,  tit.  Malice.)  See  York's  case,  9  Mete.  93  ;  Darry  v.  The 
People,  10  N.  Y.  139  ;  Hilliard  on  Torts,  ch.  vii.  §  106 ;  Mitchell  v.  Jenkins,  5  B.  <fc 
A.  590. 

72  "  Malice.  In  criminal  law  and  general  practice,  wickedness  of  purpose  ;  a 
spiteful  or  malevolent  design  against  another ;  a  settled  purpose  to  injure  or 
destroy  another.     Any  formed  design  of  doing  mischief.     1  Hale's  P.  C.  455,  Am. 


76  WRONGFUL   ACTS. 

scienter™  or  knowingly,  sometimes  as  meaning  intentionally  or 
voluntarily,74  and  often  without  any  definite  or  ascertainable 
meanino-  whatever.75     The  term  malice  is  also  divided  into  mal- 

ed.  note ;  2  Stra.  766.  Any  evil  design  in  general.  4  Bl.  Com.  198.  A  dis- 
position or  inclination  to  do  a  bad  thing.  2  Rolle  R. 461.  General  wickedness 
of  heart ;  inhuman  or  reckless  disregard  of  the  lives  or  safety  of  others,  as  when 
one  coolly  discharges  a  gun  or  throws  any  dangerous  missile  among  a  multitude 
of  people,  or  strikes  even  upon  provocation  with  a  weapon  that  must  produce 
death.  4  Bl.  Com.  199,  200.  Deliberate  disregard  of  the  rights  of  others,  as 
when  one  carries  on  the  trade  of  melting  tallow  to  the  annoyance  of  the  neigh- 
boring dwellings.  Abbott,  C.  J.,  3  B.  &  C.  584.  (BurrilVs  Law  Diet,  tit. 
Malice,  and  see  note  68,  ante.) 

73  "Maliciously  is  sometimes  equivalent  to  scienter."  (3  Austin's Led.  Juris. 
327.)  A  "conscious  violation"  of  law.  (9  CI.  &  Fin.  321;  and  Sherwin  v.  Swin- 
dall,  12  M.  &  W.  181.)  In  the  Code  prepared  by  Messrs.  Austin  <fe  Lewis  for  the 
Island  of  Malta  they  employ  the  phrase  u  culpable  knowledge"  in  bleu  of  "  im- 
plied malice."  See  Appendix  A.  to  House  of  Lords'  Report  on  Law  of  Defama- 
tion, A.  D.  1843. 

74  If  I  am  arraigned  of  felony  and  wilfully  stand  mute,  I  am  said  to  do  it  of 
malice,  because  it  is  a  wrongful  act  and  done  intentionally.  (Bayley  J.,  Bromage 
v.  Prosser,  4  B.  &  C.  247.)  Any  unlawful  act  done  wilfully  is  malicious. 
{Commonwealth  v.  Snelling,  15  Pick.  337.) 

75  In  the  English  law,  in  certain  cases  we  have  employed  the  word  malice  to 
mean  intention  generally.  As  malice  imphes  intention,  it  has  been  extended  to 
cases  in  which  there  is  no  malice.  As  I  shall  show,  it  does  not  denote  the  mo- 
tive. And  it  is  manifest  that  the  motive  to  a  criminal  action  may  be  laudable. 
The  intention  of  an  act,  suggested  by  a  blamable  motive,  lawful.  (2  Austin' s  Led. 
Juris.  110.)  It  having  been  assumed  inconsiderately  that  malice  or  criminal  de- 
sign is  of  the  essence  of  every  crime,  the  term  is  extended  abusively  to  negligence 

*  *  it  is  often  confounded  with  malice  as  denoting  malevolence,  insomuch 
that  malevolence  (though  the  motive  or  inducement  of  the  party  is  foreign  to  his 
guilt  or  innocence)  is  supposed  to  be  essential  to  the  crime.  (3  Id.  327.)  Malice 
has  also  been  denned  "  as  the  plain  indication  of  a  heart  regardless  of  social 
duty,  and  fatally  bent  on  mischief"  (U.  S.  v.  Cornell,  2  Mason,  60);  improper 
motives  ( Weekerly  v.  Geyer.  1  S.  &  R.  35) ;  wilfulness  (Dexter  v.  Spear,  4  Ma- 
son, 115  ;  Holt  on  Libel,  55) ;  a  design  formed  of  doing  mischief  to  another  (Reg. 
v.  Mawgridge,  Kely.  R.  127) ;  any  wicked  or  mischievous  intention  of  the  mind 
(Rex  v.  Harvey,  2  B.  &  C,  257).  Malice,  as  applied  to  torts,  does  not  neces- 
sarily mean  that  which  must  proceed  from  a  spiteful,  malignant,  or  revengeful  dis- 
position, but  a  conduct  injurious  to  another,  though  proceeding  from  an  ill-regu- 
lated mind  not  sufficiently  cautious  before  it  occasions  an  injury  to  another.  (11 
S.  &  R.  39,  40.)  Indeed,  in  some  cases  it  seems  not  to  require  any  intention  in 
order  to  make  an  act  malicious.  When  slander  has  been  published,  therefore,  the 
proper  question  for  the  jury  is  not  whether  the  intention  of  the  pubbcation  was 


ELEMENTS  OF  A  WRONG.  77 

ice  in  law  and  malice  in  fact?*  and  express  malice  and  implied 
malice?'1  Probably  the  phrase  implied  malice  is  identical  with 
the  phrase  malice  in  law,  and  the  phrase  express  malice  with 
the  phrase  malice  in  fact ;  for  among  the  definitions  we  find 
malice  in  law  defined  as  "  The  malice  which  is  inferred  from  the 
doing  a  wrongful  act  without  lawful  justification  or  excuse ." 78 
The  distinction  between  malice  in  law  and  malice  in  fact  is 
supposed  to  consist  in  this,  that  the  one  is  inferred  and  the 
other  proved.  The  attempted  distinction  is  unreal  and  un- 
sound; there  is  no  distinction  between  what  is  inferred  and 
what  is  proved — what  is  inferred  is  proved.  "  We  say  of  a  fact, 
it  is  proved  when  we  believe  its  truth  by  reason  of  some  other 

to  injure  the  plaintiff,  but  whether  the  tendency  of  the  matter  published  was  so 
injurious.  10  B.  <fe  C.  472 ;  s.  c.  21  E.  C.  L.  Rep.  117;  and  see  3  B.  &  C.  584; 
s.  c.  10  E.  C.  L.  Rep.  179.     (Bouvier's  Law  Diet  voce  Malice.) 

76  Malice  "has  been  sometimes  divided  into  legal  malice  or  malice  inlaw, 
and  actual  malice  or  malice  in  fact.  These  terms  might  seem  to  imply  that  the 
two  kinds  of  malice  are  different  in  their  nature.  The  true  distinction,  however, 
is  not  in  the  malice  itself,  but  simply  in  the  evidence  by  which  it  is  established. 
In  all  ordinary  cases,  if  the  charge  complained  of  is  injurious,  and  no  justifiable 
motive  for  making  it  is  apparent,  malice  is  inferred  from  the  falsity  of  the  charge. 
The  law  in  such  cases  does  not  impute  malice  not  existing  in  fact,  but  presumes 
a  malicious  motive  for  making  a  charge  which  is  both  false  and  injurious  when 
no  other  motive  appears.  When,  however,  the  circumstances  show  that  the  de- 
fendant may  reasonably  be  supposed  to  have  had  a  just  and  worthy  motive  for 
making  the  charge,  then  the  law  ceases  to  infer  malice  from  the  mere  falsity  of 
the  charge,  and  requires  from  the  plaintiff  other  proof  of  its  existence.  It  is 
actual  malice  in  either  case,  the  proof  only  is  different."  Selden,  J.,  Lewis  v. 
Chapman,  16  N.  Y.  372. 

77  The  distinction  between  express  and  implied  malice  is  well  illustrated  in  the 
argument  of  that  distinguished  lawyer,  Nicholas  Hill,  in  Darry  v.  The  People,  10 
N.  Y.  123,  as  thus :  The  term  express  malice  originally  meant  malice  proved  inde- 
pendently of  the  mere  act  from  which  death  resulted,  and  implied  malice  the 
reverse.  They  therefore  described  only  different  modes  of  proving  actual  guilt, 
not  different  degrees  of  it ;  and  they  belonged  to  the  law  of  evidence,  not  to  a 
definition  of  homicide.  They  did  not  even  indicate  different  degrees  of  evidence, 
both  kinds  when  sufficient  being  conclusive  until  overcome.  And  they  were 
applicable  to  every  case  where  proof  of  the  actual  intent  was  requisite  to  chai*- 
acterize  an  offence."  He  supports  these  views  by  a  profuse  citation  of  author- 
ities. The  opinions  in  this  case  should  be  perused  by  those  who  desire  more  in- 
formation on  the  subject  of  implied  malice. 

78 1  Starkie  on  Libel,  213. 


78  WRONGFUL   ACTS. 

fact  from  which  it  is  said  to  follow."79  Some  judges  have 
avoided  this  objection  by  denying  that  malice  in  law  is  a 
question  of  fact,  and  styling  it  a  conclusion  of  law  not  required 
to  be  proved  and  not  permitted  to  be  denied.80  If  malice  in 
law  is  a  conclusion  of  law,  then  is  malice  in  fact  a  conclusion  of 
law ;  and  if  this  be  so,  it  is  still  true  that  they  are  not  distinguish- 
able the  one  from  the  other.  Whether  malice  in  fact  is  here 
employed  in  the  sense  of  want  of  legal  excuse  or  in  the  sense 
of  bad  intent  is  immaterial  on  this  point.  The  non-existence 
of  legal  excuse  in  the  one  case  and  the  existence  of  bad  intent 
in  the  other  can  be  proved  only  by  inference.  No  argument 
can  make  it  more  clear  than  the  mere  statement  that  the  non- 
existence of  a  legal  excuse  does  not  admit  of  direct  proof,  and 
can  be  proved  only  by  inference.  As  to  the  proof  of  malice  in 
fact  or  of  a  bad  intent,  we  have  already  considered  how  intent 
may  be  proved ;  and  from  the  nature  of  the  subject  it  will  con- 

79  Mill's  Logic,  b.  2,  c.  1,  §  1. 

80  "  The  malicious  intent  of  the  publication  is  not  a  question  of  fact,  but  a  con- 
clusion of  law.  It  is  the  intent  which  the  law  implies,  and  which  the  plaintiff  is 
therefore  not  required  to  prove,  nor  the  defendant  permitted  to  deny."  (Duer  J. 
Fry  v.  Bennett,  1  Code  Rep.  N.  S.  243 ;  5  Sandf.  54.)  The  only  case  in  which 
malice  may  be  proved  is  where  privilege  is  pleaded.  (Root  v.  Lovmds,  6  Hill, 
520  ;  Washburn  v.  Cook,  3  Denio,  112;  Howard  v.  Sexton,  4  Corns.  157.)  "  Mal- 
ice, so  far  as  the  law  requires  it  to  sustain  the  action,  is  implied  from  the  publi- 
cation of  that  which  is  untrue — the  law  presuming  it  to  exist  in  such  a  case. 
Therefore,  express  malice  is  not  required  to  sustain  the  action."  (Littlejohn  v.  Greeley, 
13  Abb.  Pr.  R.  55.)  "  It  is  said  that  malice  is  involved  in  the  issue.  *  *  * 
The  answer  to  this  suggestion  is  that  in  the  action  of  slander,  except  in  cases  of 
privileged  communications,  express  malice  forms  no  part  of  the  issue.  Legal 
malice  only  is  affirmed  or  denied,  and  this  results  from  proof  of  the  transaction 
*  *  *  which  the  law  pronounces  wrongful,  and  therefore  malicious. — 2 
Greenl.  Ev.  §  410,  418,  421."  (Gardiner  J.,  Howard  v.  Sexton,  4  Corns.  160.1 
"  In  an  ordinary  action  for  a  libel  or  for  words,  though  evidence  of  malice  may 
be  given  to  increase  the  damages,  it  never  is  considered  as  essential,  nor  is  there 
any  instance  of  a  verdict  for  the  defendant  on  the  ground  of  a  want  of  malice." 
(Mansfield,  Ch.  J.,  Hargrave  v.  Le  Breton,  4  Burr.  2425,  repeated  by  Bayley,  J., 
in  Bromage  v.  Prosser,  4  B.  &  C.  247.)  Others  say  malice  must  be  proved. 
"  The  jury  have  no  more  right  to  find  malice  in  the  defendant,  without  sufficient 
evidence,  than  they  have  to  find  any  other  fact  in  the  plaintiff's  favor  without 
proof."  (Woodruff,  J.,  Liddle  v.  Hodges,  2  Bosw.  544.)  And  see  Holloway  v.Tur- 
rell,  26  Wend.  396  ;   Cooke  on  Defamation,  ch.  iv. 


ELEMENTS  OF  A  WRONG.  79 

clusively  appear  that  inasmuch  as  at  the  time  when  this  division 
of  malice  took  place  parties  to  a  transaction  were  not  allowed 
to  testify,  there  could  at  that  time  be  none  other  than  indirect 
evidence  of  bad  intent  or  malice.  At  that  time  the  existence 
of  bad  intent  or  malice  could  be  proved  in  no  other  manner 
than  by  inferring  it  from  the  acts  or  declarations  of  the  actor, 
or  by  the  like  means  as  the  proof  of,  so  called,  malice  in  law. 

§  88.  Pursuing  the  subject,  and  upon  reference  to  the  text- 
books and  reports  to  ascertain  whether  intent  and  malice  are 
elements  of  a  wrong,  we  find  some  authors  and  judges  laying 
down  the  rule  that  intent  is  the  essential  ingredient  of  every 
wrong.81  Intent,  of  course,  means  bad  intent,  and  this  is  so 
universally  conceded  that  all  collections  of  legal  maxims  in- 
clude this.  "  Actus  nonfacit  reum,  nisi  mens  sit  rea  j  "  which 
is  translated  :  "  An  act  does  not  make  guilty,  unless  the  mind 
be  guilty — that  is,  unless  the  intention  be  criminal  ;82  others  as- 

61  Every  wrong  supposes  intention  or  negligence  on  the  part  of  the  wrong- 
doer. (2  Austin's  Lect.  Juris.  2.)  Intention,  negligence,  heedlessness,  or  rashness, 
is  of  the  essence  of  a  wrong,  is  a  necessary  condition  precedent  to  the  existence 
of  guilt  (Id.  144).  Guilt  imports  that  the  party  has  broken  a  duty  (Id.  14*7,  149); 
it  denotes  the  intention  and  connotes  the  act,  forbearance  or  omission,  which 
was  the  effect  of  his  intention  (Id.  14*7),  and  at  p.  165,  Unlawful  intention  or  un- 
lawful inadvertence  is  of  the  essence  of  injury.  And  on  examining  the  grounds 
of  exemption  from  liability,  we  find  the  party  is  or  is  presumed  to  be  clear  of  in- 
tention or  inadvertence;  and  (p.  168)  the  ultimate  ground  of  exemption  for 
ignorance  or  error  of  fact  is  the  absence  of  unlawful  intention  or  unlawful  inad- 
vertence. At  p.  1*79,  An  infant  or  a  person  insane  is  exempted  from  liability,  not 
because  he  is  an  infant  or  insane,  but  because  it  is  inferred  from  his  infancy  or 
insanity  that  the  wrong  was  not  the  consequence  of  unlawful  intention  or  inad- 
vertence ;  and  (p.  185)  the  reason  assigned  by  Blackstone  and  other  writers  is 
hardly  worth  powder  and  shot.  He  tells  us  that  a  wrong  is  the  effect  of  a  wicked 
will.  And  (says)  infants  and  madmen  are  exempted,  because  the  act  goes  not 
with  their  will,  or  is  not  imputable  to  a  wicked  will.  *  *  *  He  cannot  mean 
to  affirm  that  an  infant  or  madman  has  not  as  much  will  as  the  adult  or  the  sane. 
[It  must  be  observed  that  Austin  makes  a  distinction  between  will  and  motive. 
By  will,  if  we  interpret  him  aright,  he  intends  only  the  mere  act  of  volition.] 

Intent  is  the  essence  of  crime.  (Krom  v.  Schoonmaker,  3  Barb.  64/7.)  The 
criminality  of  the  act  depends  altogether  upon  the  intent  with  which  it  was 
done.     (Genet  v.  Mitchell,  7  Johns.  120;  and  see  2  Starkie  Ev.,  tit.  Intention.) 

-2  See  BurrilFs  Law  Diet.  tit.  Actus,  where  he  adds,  The  intent  and  the  act 
must  both  concur  to  constitute  the  crime.     Kenyon,  Ch.  J."  1  T.  R.  514 ;  Broom's 


80  WRONGFUL  ACTS. 

sert  that  intent  is  immaterial  in  civil  actions,  except  in  the  civil 
actions  for  slander  and  libel  ;ffl  others,  that  intent  is  immaterial 
in  slander  and  libel,  or  immaterial  except  under  certain  circum- 
stances j84  and  others,  that  the  essential  element  of  a  slander  or 
a  libel  is  malice  or  a  malicious  intent,  the  mind  must  be  in 


Max.  144.  This  maxim  is  exclusively  applicable  to  criminal  law  and  to  civil  pro- 
ceedings for  slander  and  libel ;  in  [qy.  other]  civil  actions  the  intent  is  immaterial 
if  the  act  done  be  injurious  to  another.  (Id.  155,  161.)  The  maxim  "  Affectio 
tua  nomen  imponit  operi  tuo"  [your  disposition  or  intention  gives  name  or  char- 
acter to  your  work  or  act]  embodies  the  same  principle.  Bract,  fo.  101b.  See 
Broom's  Maxims,  tit.  Actus  non  facit,  &c,  where  he  says:  With  respect  to  libel 
and  slander  the  rule  is  *  *  *  where  an  occasion  exists  which  if  fairly  acted 
upon  furnishes  a  legal  protection  to  the  party  who  makes  the  communication 
complained  of,  the  actual  intention  of  the  party  affords  a  boundary  of  legal  lia- 
bility. See  also  BurrilFs  Law  Diet.  tit.  Voluntas,  citing  Voluntas  et  proposi- 
tion distinguunt  maleficia — Will  and  purpose  characterize  crimes.  Crimen  non 
contrahitur,  nisi  voluntas  nocendi  intercedat.  Crime  is  not  contracted  unless  the 
intention  of  doing  harm  be  present.  Tolle  voluntatem  et  eris  omnis  actus  indiffe- 
re?is.     Take  away  will  and  every  act  will  become  indifferent. 

We  cannot  pass  the  quotation  of  a  so-called  law  maxim  without  entering  our 
protest  against  their  reception  as  legal  axioms.  We  believe  that  not  a 
single  law  maxim  can  be  pointed  out  which  is  not  obnoxious  to  objection.  The 
old  law  maxims  must  be  put  aside  or  forgotten,  or  remembered  only  as  things  of 
the  past  and  dead,  even  as  we  have  put  aside  and  forgotten  maxims  in  science, 
supplying  their  places  with  maxims  drawn  from  a  larger  experience  and  more 
philosophical  analysis.  "  Perhaps  there  is  a  period  in  every  system  of  law  pre- 
vious to  which  the  formation  of  maxims  will  be  productive  of  bad  effects,  as 
leading  to  the  establishment  of  principles  which  it  is  not  permitted  to  controvert, 
but  which  more  enlightened  views  would  repudiate."  Fortesque  de  laudibus,  &c„ 
ch.  viii.,  note  to  edition  by  Amos.  See  Dodderidge's  English  Lawyer  ;  Doctor 
and  Student,  Dial.  1,  ch.  8,  9;  Bacon's  Preface  to  his  Maxims.  The  benefit 
which  science  has  received  from  the  use  of  maxims  is  of  a  questionable  nature, 
and  the  adoption  of  these  is  of  a  questionable  nature  whenever  the  ideas  are 
confused.     (Locke  on  the  Understanding,  B'k  iv.,  ch.  7.) 

63  See  in  note  82,  ante. 

84  The  secret  intention  of  the  publisher  is  immaterial  (Hankinson  v.  Bilby,  16 
M.  &  W.  442),  "  It  is  an  error  to  suppose  that  motive,  except  where  the  words  are 
privileged,  is  in  any  way  essential  to  a  cause  of  action."  The  motive  of  the 
defendant  is  wholly  immaterial  as  respects  the  right  of  action.  It  may  be  a  good 
or  a  bad  one.  (Daly,  F.  J.,  Viele  v.  Gray,  10  Abb.  Pr.  R.  6, 1 ;  18  How.  Pr.  R.,  550.) 
In  an  action  brought  by  A  against  B  for  slandering  the  title  of  the  former  to 
certain  slaves  by  him  exposed  to  public  sale,  a  verdict  was  found  for  him ;  B 
brought  his  bill  praying  for  relief,  and  an  injunction  against  the  verdict,  and  it 


ELEMENTS   OF   A   WRONG.  81 

fault  f5  and  some  expressly  and  some  by  implication  assert  that 
this  fault  in  the  mind,  this  bad  intent  or  malice,  must  be  in  fact 

was  held  that  as  the  loss  in  the  sale  of  the  slaves  was  caused  by  B,  even  though 
he  was  believed  to  have  designed  no  injury,  he  was  bound  to  make  reparation,  and 
his  bill  was  dismissed.  (Ross  v.  Pines,  Wythe,  71.)  There  is  no  instance  of  a 
verdict  for  the  defendant  on  the  ground  of  want  of  malice.  (Mansfield,  Ch.  J., 
Hargrave  v.  Le  Breton,  4  Burr.  2425  ;  repeated  by  Bailey,  J.,  Bromage  v.  Prosser, 
4  B.  &  C.  24 7.)  If  I  give  a  man  slanderous  words,  whereby  I  damnify  him  in 
his  name  and  credit,  it  is  not  material  whether  I  use  them  upon  sudden  choler  and 
provocation,  or  of  set  malice,  but  in  an  action  upon  the  case  I  shall  render  dam- 
ages alike.     (Bacon  Maxims  of  the  Law,  Regula  VII.) 

The  intent  with  which  an  act  is  done  is  by  no  means  the  test  of  the  liability 
of  a  party  to  an  action  of  trespass.  (Guille  v.  Swan,  19  Johns.  381 ;  Percival  v. 
Hickey,  18  id.  257;  Tremain  v.  C'ohoes  Co.,  2  Corns.  164;  Ruckman  v.  Cowell,  1 
Corns.  507  ;  Safford  v.  Wyckoff,  1  Hill,  11.)  Bona  fides  will  not  protect  a  magis- 
trate who  does  an  illegal  act.  (Pricketl  v.  Greatrex,  1  New  Mag.  Cas.  543  ;  7  Law 
Times,  139.)  It  is  immaterial  with  what  motive  a  man  does  a  legal  act.  (Humph- 
rey v.  Douglass,  11  Verm.  R.  22);  and  so  of  an  unlawful  act.  (Amick  v.  C Hara, 
6  Blackf.  258.)  Intention  held  to  be  immaterial.  (Bullock  v.  Babcock,  3  Wend. 
391;  Baker  v.  Bailey,  16  Barb.  60.)  Intent  immaterial  if  the  words  are  a 
libel.  (People  v.  Freer,  1  Caines'  Rep.  485.)  In  a  private  action  for  libel  the  mo- 
tives are  out  of  the  question.  (Root  v.  King,  7  Cow.  633.)  If  the  words  are  not 
actionable  per  se,  and  have  not  occasioned  any  special  damage,  no  amount  of  malice 
in  the  publisher  will  make  them  actionable.  (Kelly  v.  Partington,  3  Nev.  &  M. 
116 ;  5  B.  &  Adol.  645 ;  and  see  2  Nev.  &  M.  460;  4  B.  &  Adol.  700.)  "  Bad 
motives  in  doing  an  act  which  violates  no  legal  right  of  another  cannot  make 
that  act  aground  of  action."     (Pickard  v.  Collins,  23  Barb.  459.) 

Where  an  act  in  itself  indifferent  if  done  with  a  particidar  intent  becomes 
criminal,  there  the  intent  must  be  proved  and  found ;  but  when  the  act  is  in  itself 
unlawful  (i.  e.  prima  facie  and  unexplained)  the  proof  of  justification  or  excuse 
lies  on  the  defendant,  and  in  failure  thereof  the  law  implies  a  criminal  intent ; 
in  the  latter  case  the  intention  is  immaterial  and  therefore  not  a  question  of  fact 
in  issue,  for  the  crime  consists  in  publishing  a  libel:  "  a  criminal  intention  in  the 
writer  is  no  part  of  the  definition  of  the  crime  of  libel  at  the  common  law."  Per  Lord 
Mansfield  in  WoodfalPs  case,  the  words  quoted  are  from  the  opinion  of  the 
twelve  English  judges  delivered  in  the  House  of  Lords  upon  questions  put  to 
them  on  the  subject  of  libel.  (Journals  of  the  House  of  Lords,  1792,  Appendix 
27;  and  22  Howell's  State  Trials,  300.)  Except  in  the  cases  of  privileged  com- 
munications express  malice  forms  no  part  of  the  issue.  (Howard  v.  Sexton,  4 
Corns.  157,  and  see  note  (80)  ante.)  "In  which  case  [privileged  communication] 
express  malice  must  be  shown,  while  in  other  cases  express  malice  forms  no  part 
of  the  issue.  Thorn  v.  Moser,  1  Denio,  488 ;  The  State  v.  Burnham,  9  N.  Hamp. 
34  ;  Howard  v.  Sexton,  4  Corns.  157."  (W.  F.  Allen,  J.,  Bush  v.  Prosser,  11  N.  Y. 
355 ;  see  id.  p.  358,  and  note  85,  post.) 

85  "  To  constitute  that  injury  [slander]  malice  must  be  proved,  not  mere  gene- 
6 


82  WRONGFUL   ACTS. 

or  impliedly  in  the  mind  of  the  defendant  in  the  action.  And 
the  divisions  of  will  and  of  malice  heretofore  referred  to  (§§  86, 
87)  appear  to  have  been  designed  to  meet  this  requirement  in 

ral  ill-will  but  malice  in  the  special  case  set  forth  in  the  pleadings,  to  be  inferred 
from  it  and  the  attending  circumstances."     (Gardiner,  J.,  Howard  v.  Sexton,  4 
Comst.  161 ;  quoted  and  approved  by  Rosekrans,  J.,  Fry  v.  Bennett,  28  N.  Y.  328  ; 
and  by  W.  F.  Allen,  J.,  Bush  v.  Prosser,  11  N.  Y.  357.)  "  Malice  is  essential  to  every 
action  for  libel."     (Selden,  J.,  Lewis  v.  Chapman,  16  N.  Y.  372.)     "  In  all  cases 
malice  is  essential  to  the  action.     Not  imputed  malice  merely,  but  actual  malice, 
malice  established  by  proof."     (Selden,  J.,  Bushy.   Prosser,  UN.  Y.  358.)     To 
maintain  the  action  there  must  be  "  (1)  malice  in  the  defendant ;  (2)  injury  to  the 
plaintiff;  (3)  that  the  words  should  be  untrue."     (Ellenborough,  Ch.  J.,  Maitland 
v.  Q-oldney,  2  East,  426.)     The  malice  of  the  publication  or  the  intent  to  defame 
the  reputation  of  another  is  the  essence  of  the  offence  of  libel.     ( Com'wealth  v. 
Clapp,  4  Mass.  R.  163 ;  Com'wealth  v.  Snelling,  15  Pick.  337.)     In  order  to  render 
the  publisher  amenable  to   the  law,  the  publication  must   be   maliciously  made, 
but  malice  will  be  presumed  if  the  matter   be   libelous.     (Bouvier  Law  Diet., 
voce  Publisher.)     "The  criminality  of  the  charge  in  the  indictment  consisted  in  a 
malicious  and  seditious  intention.    There  can  be  no  crime  without  a  wicked  mind." 
(Kent,  J.,  The  People  v.  Crosswell,  3  Johns.  Gas.  364) ;  and  "  as  a  libel  is  a  defam- 
atory publication  made  with  a  malicious  intent.    (Id.  377.)     The  injury  consists  in 
"  falsely  and  maliciously  "  charging  another  with,  &c.    (Kent's  Com.,  part  iv.,  sect. 
24,  p.  706  of  1  vol.  11th  ed.,  and  id.  p.  617.)     "The  essential  ground  of  action  for 
defamation  consists  of  the  malicious  intention,  and  when  the  mind  is  not  in  fault 
no  prosecution  can  be  maintained  ;"  and  the  story  recited  from  Fox's  Martyrology 
in  Brook  v.  Montague,  Cro.  Jac.  91,  is  referred  to.     "  The  mind  must  be  in  fault 
and  show  a  malicious  intention  to  defame."     (Kenyon,  J.,  Rex  v.  Abingdon,  1 
Esp.  226.)     "  By  the  law  of  England  malice  is  an  essential  ingredient  in  every 
action  on  the  case  for  slander."  (Borthwick  on  Libel,  194.)  And  in  a  note  (id.)  at- 
tributed to  Starkie,  it  is  said,  Every  definition  of  the  subject-matter  of  an  action 
for  slander  to  be  found  in  the  books  of  reports  or  elementary  writers,  includes 
malice  as  an  essential  ingredient.     Malice  is  the  gist  of  the  action  for  slander. 
|  McKep  v.  Ingalls,  4  Scam.  30 ;  White  v.  Nicholls,  3  How.  U.  S.  Rep.  266.)  There  must 
be  a  mischievous  intention.   (George  on  Libel,  162.)   The  guilt  [gist]  of  and  essen- 
tial ground  of  action  for  defamation  consists  inthe  malicious  intention,  and  when 
the  mind  is  not  in  fault  no  prosecution  can  be  maintained.     2  Kent's  Com.  26. 
(W.  F.  Allen,  J.,  Bush  v.  Prosser,  11  N.  Y.  355.)      In  the  trial  of  the  Seven  Bish- 
ops, Justices  Holloway  and  Powell  both  say  to  make  a  libel  it  must  be  malicious. 
"  The  main  question  is  quo  animo  the  defendant  published  the  article  complained 
0f     *     *     *     The  plaintiff  is  bound  to  show  that  the  defendant  was  actuated  by 
malice."     (Ellenborough,  Chief  J.,  Tabart  v.   Tipper,  1  Camp.  350,  351.)     "The 
gist  of  an  action  of  slander,  for  words  in  themselves   actionable,  is  the  malice 
which  produced  them ;  take   away  this   and   the    suit   is  not  maintainable   in 
any   shape."     (Rossell,  J.,   Cook  v.  Barkley,  1  Penn.  N.  J.  Rep.    180,   and  p.  183 
per  Pennington,  J.)       "  The  quo    animo  with  which  the   words  were   spoken 


ELEMENTS  OF  A  WRONG.  83 

those  cases  in  which  there  is  no  pretence  of  any  bad  intent,  or 
no  possibility  of  any  bad  intent  in  the  mind  of  the  defendant 
in  the  action.  There  will  be  no  necessity  for  any  such  division 
i  if  will  or  malice  if  the  distinction  between  the  wrong  and  the 
liability  be  observed  (§  66).  At  the  same  time  that  courts  hold 
malice,  meaning  bad  intent,  to  be  a  necessary  ingredient  of  slander 
and  libel,  they  hold  that  it  is  not  absolutely  necessary  to  allege 
malice  in  a  declaration,86  and  that  the  introduction  of  an  alle- 
gation of  malice  in  a  declaration  for  libel  is  "  rather  to  exclude 
the  supposition  that  the  publication  had  been  made  on  some 

was  the  point  in  issue,  as  malice  constitutes  the  gist  of  the  action."  "  It  is  said 
there  need  be  no  express  malice  except  in  the  case  of  privileged  communications, 
that  in  other  words  implied  or  legal  malice  is  all  that  is  required.  What  is  meant 
by  implied  malice  ?  Does  it  mean  malice  which  the  law  imputes  without  any 
proof  of  its  existence  ?  I  apprehend  not.  It  means  this  :  that  the  fact  that  the 
defendant  is  shown  to  have  published  a  false  charge  against  another  which  was 
calculated  to  injure  him,  proves  that  the  defendant  was  actuated  by  malicious 
motives,  unless  the  circumstances  are  such  as  to  suggest  some  other  and  innocent 
motive.  This  is  nothing  more  than  the  application  of  a  familiar  rule  of  evidence, 
viz.,  that  every  person  is  presumed  to  intend  that  which  is  the  natural  conse- 
quences of  his  actions.  *  *  *  But  is  malice  any  more  the  ground  of  the  action  in 
cases  of  privileged  communication  than  in  others  ?  Clearly  not.  It  is  called  for 
the  sake  of  convenience  express  malice  in  the  one  case  and  implied  in  the  other  ; 
but  the  malice  is  the  same,  the  difference  is  in  the  proof  alone.  We  may  there- 
fore assume  that  in  all  cases  malice  is  essential  to  the  action.  Not  imputed  malice 
merely,  but  actual  malice  ;  malice  established  by  proof."  (Selden,  J.,  Bush  v. 
Prosser,  11  N.  Y.  358.) 

The  case  of  Mercer  v.  Sparks  (Owen,  51 ;  Noy,  35)  was  cited  in  McPherson  v. 
Daniels  (10  B.  &  Cr.  266)  as  an  authority  for  the  proposition  that  in  an  action  for 
slander  malice  need  not  be  alleged ;  but  per  Parke,  J.,  "  that  was  after  verdict,  and 
malice  must  have  been  proved  at  the  trial."  Malice  "  may  be  said  to  be  a  neces- 
sary ingredient  in  one  form  or  other  of  all  crimes  whatever."  (Stephen,  Crim. 
Law,  81.)  As  to  necessity  of  proving  malice  in  actions  for  slander  and  libel,  see 
George  on  Libel,  149;  Jones  on  Libel,  8,  9,  11,  14,  Comyn  Dig.  Action  for  Defa- 
mation, G;  Smith  v.  Ashley,  11  Met.  486;  McCorkle  v.  Binns,  5  Binney,  340; 
Coxhead  v.  Richards,  2  C.  B.  608  ;  Lillie  v.  Price,  5  Ad.  &  El.  645 ;  Harwood  v. 
Astley,  4  Bos.  <fe  Pul.  47;  and  Hastings  v.  Lusk,  22  Wend.  416 ;  Steele  v.  South- 
wick,  9  Johns.  214;  Boot  v.  King,  4  Wend.  113  ;  1  Saund.  243,  note  4. 

es  In  a  complaint  for  libel  it  is  not  necessary  to  aver  express  malice.  (Purdy  v. 
Carpenter,  6  How.  Pr.  R.  366.)  Maliciously  need  not  be  used  if  words  of  an  equiva- 
lent import  are  used.  ( White  v.  Nicholls,  3  How.  U.  S.  Rep.  266.)  The  omission 
is  cured  by  verdict.  {McPherson  v.  Daniels,  10  B.  <fe  C.  266 ;  Taylor  v.  Kneeland,  1 
Doug.  67. ) 


84  WRONGFUL   ACTS. 

innocent  occasion  than  for  any  other  purpose/' 87  And  except 
to  aggravate  the  damages  courts  will  nut  allow,  on  a  trial,  any 
evidence  of  malice  (bad  intent)  in  addition  to  that  which  is  said 
to  be  inferred,  until  evidence  has  been  given  which  counter- 
vails or  reverses  the  so-called  presumption  of  malice  or  malice 
in  law,88  nor  will  they  allow  this  presumption  nor  malice  in  fact 
to  be  contradicted  by  any  mere  denial,  or  shown  not  to  exist  by 
proving  an  actual  good  intent.  They  permit  but  one  way  of 
evading  this  malice  in  law,  and  that  is  by  showing  the  existence 
of  a  legal  excuse  for  the  act  of  publication.  If  the  legal  ex- 
cuse shown  be  a  prima  facie  one  only,  its  effect  is  merely  to 
remove  the  alleged  presumption  of  malice  and  raise  an  alleged 
presumption  of  absence  of  malice,  and,  as  it  is  said,  require 
the  plaintiff  to  show  malice  in  fact.  This  very  intricate  course 
of  procedure  arises  from  erroneously  treating,  in  practice,  as  an 
affirmative  part  of  the  essential  element  of  a  wrong  that  which 
is  more  properly  a  negative  part,  not  required  to  establish  the 
fact  of  a  wrong  done,  but  required  only  when  it  is  designed  to 
show  that  what  is  a  wrongful  act,  and  prima  facie  a  wrong,  is 
not  so  in  fact  (§  63).  Let  a  wrongful  act  stand  for  a  wrong, 
unless  and  until  a  legal  excuse  be  shown,  and  we  make  intelli- 
gible and  consistent  what  is  now  difficult  to  understand,  and 
only  to  be  reconciled  by  a  series  of  fictions.89 

§  89.  One  meaning  in  which  intent  or  intention  is  employed 
is  will.  When  so  employed  it  corresponds  to  what  we  have 
described  as  voluntary.  And  if  instead  of  saying  intent  is 
necessary  to  constitute  a  wrong,  we  say  will  is  necessary  to 

87  Abbott,  Ch.  J.,  Duncan  v.  Thwaites,  3  B.  <fc  C.  585. 

88  In  the  adjustment  of  damages  malice  [bad  intent']  may  become  an  element. 
(Viele  v.  Gray,  10  Abb.  Pr.  R.  6  ;  18  How.  Pr.  R.  566;  Rooty.  King,  1  Cow.  633  ; 
Fry  v.  Bennett,  28  N.  Y.  327,  S.  C.  3  Bosw.  200 ;  Taylor  v.  Church,  1  E.  D.  Smith, 
219;  and  4  Selden,  452  ;  Littlejohn  v.  Greeley,  13  Abb.  5*7 ;  Bush  v.  Prosser,  11 
N.  Y.  359  ;  and  see  post,  Damages.) 

68  Mr.  Stephen,  after  referring  to  the  manner  in  which  the  word  "  malicious  " 
operates  in  shifting  the  burden  of  proof  from  the  prosecutor  to  the  prisoner,  and 
stating  that  legal  fictions  are  matters  of  regret,  says,  "  it  would  be  better  to  throw 
the  law  into  a  different  shape,  and  to  enact  specifically  that  persons  who  do  acts 
of  which  the  natural  consequence  is  to  kill,  Ac,  shall  be  punished  instead  of 
introducing  the  question  of  intent  at  all.     (Stephen  Crim.  Law,  304.) 


ELEMENTS  OF  A  WRONG.  85 

constitute  a  wrong,  and  then  keep  in  view  the  distinction  be- 
tween will  or  voluntary  and  intent,  we  at  once  remove  very 
much  of  the  difficulty  which  has  been  supposed  to  be  inherent 
in  the  law  relating  to  slander  and  libel.  It  is  conceded,  at  least 
by  some,  that  in  civil  actions  other  than  those  for  slander  and 
libel,  intent,  in  the  sense  of  intending  the  consequences  of  an 
act,  is  immaterial ;  why  should  the  civil  actions  for  slander  and 
libel  be  exceptions  ?  Certainly  the  burden  of  proving  them  to 
be  exceptions  lies  upon  those  who  insist  that  they  are  not  within 
the  rules  which  govern  every  other  civil  action. 

§  90.  One  meaning  of  malice  is  absence  of  legal  excuse. 
This  is  the  sense  in  which  the  term  is  most  frequently  employed, 
and  it  is,  we  conceive,  the  only  sense  in  which  it  is  properly  em- 
ployed.90 Substitute  "  absence  of  legal  excuse"  for  "malice" 
in  many  opinions  in  the  reports  which  are  difficult  to  be  under- 
stood, and  they  will  become  easily  intelligible,  and  accord  with 
the  principles  we  venture  to  propound. 

To  illustrate,  that  what  is  called  malice  in  fact  really  means 
nothing  more  nor  less  than  absence  of  legal  excuse,  suppose  A. 
has  untruely  said  B.  is  a  thief,  under  circumstances  that  A. 
believing  B.  to  be  a  thief,  would  constitute  a  legal  excuse.  A 
familiar  instance  of  this  is  the  case  of  giving,  as  it  is  termed, 
the  character  of  a  former  employe.  In  the  case  supposed 
the  material  inquiry  is  :  what  was  A's  belief?  To  answer  this 
inquiry,  and  only  for  the  purpose  of  answering  this  inquiry, 
it  may  be  material  to  ascertain  what  feeling  or  intention  A. 
had  towards  B. ;  if  the  intention  is  found  to  be  friendly,  it  is  a 
link  in  the  chain  of  evidence  that  A.  spoke  believing  what  he 
said.  If  the  intention  of  A.  towards  B.  was  unfriendly,  it  is  a 
link  in  the  chain  of  evidence  that  A.  spoke  rather  from  that 
intent  or  for  some  purpose  other  than  from  his  belief;  and  being 
spoken  not  in  a  belief  of  its  truth,  the  .speaking  was  out  of  the 
pale  of  legal  excuse,  and  was  wrongful,  not  merely  or  in  any- 
wise because  of  the  intent,  which  may  have  been  good  or  bad, 
but  because  the  speaking  was  not  in  the  manner  prescribed  to 
constitute  a  legal  excuse,  namely,  from  belief.     If  in  such  a  case 

'"'  See  note  71,  ante. 


86  WRONGFUL  ACTS. 

A.  was  allowed  to  testify,  and  was  to  admit  that  he  did  not 
believe  to  be  true  what  he  said  concerning  B.,  but  that  he  spoke 
without  any  intent  to  injure  or  with  a  good  intent  towards  B.  or 
any  other,  that  testimony  would  not  constitute  any  defence ; 
admitting  that  he  did  not  believe  what  he  spoke,  would  take 
away  the  legal  excuse. 

§  91.  The  intent — meaning  the  intent  to  effect  certain  con- 
sequences— with  which  an  act  is  done  is  material  on  the  ques- 
tion of  the  amount  of  damages ;  the  absence  of  a  bad  intent 
will  mitigate  the  damages ;  the  presence  of  a  bad  intent  will 
aggravate  them.  The  intent  of  the  actor  is  sometimes  mate- 
rial as  a  link  in  the  chain  of  evidence  to  determine  whether  or 
not  some  certain  act  was  or  was  not  done  under  circumstances 
constituting  a  legal  excuse,  as  where  the  legal  excuse  is  depend- 
ent upon  the  question  :  what  was  the  belief  of  the  actor  ?  "With 
these  exceptions,  we  conceive  that  intent  is  never  material  and 
that  intent  is  never  an  essential  element  of  a  wrong.  No 
amount  of  good  intent  will  excuse  an  act  otherwise  wrongful, 
and  no  amount  of  bad  intent  will  make  wrongful  that  which  is 
otherwise  a  permitted  act.  If  intent  is  not  an  essential  element 
of  a  wrong,  neither,  in  the  sense  of  bad  intent,  is  malice.  If 
the  term  malice  is  to  be  retained  in  use  as  a  technical  term,  it 
raust  be  only  in  the  sense  of  want  of  legal  excuse. 

§  92.  This  view  is  not,  we  are  pleased  to  say,  any  innovation 
or  novel  doctrine ;  it  is  but  a  return  to  the  old  paths,  from  which 
the  departure  has  been  very  wide.  Holt,  after  referring  to  the 
objections  urged  against  fhe  law  of  libel,  says91 :  "  It  is  urged 
that  the  motive  of  many  publications  which  the  law  decrees 
libels,  may  be  innocent  and  even  laudable ;  and  that  without 
the  proof  of  malice,  or,  what  is  equivalent  to  malice,  the  mere 
act  of  composing  or  publishing  a  libel  ought  not  to  be  the  sub- 
ject of  punishment.  This  objection  only  becomes  specious  from 
the  misapprehension  of  the  term  malice.  Malice,  in  legal  un- 
derstanding, implies  no  more  than  willfulness.92     The  first  in- 

91  Holt  on  Libel,  conclusion  of  ch.  iii.,  b'k  1,  p.  55  ;  and  see  comments  on  this. 
2  Mence  on  Libel,  25. 

82  See  Dexter  v.  Spear,  4  Mason,  115. 


ELEMENTS   OF   A  WRONG.  87 

quiry  of  a  civil  judicature,  if  the  fact  do  not  speak  for  itself  as 
a  malum  in  se,  is  to  find  out  whether  it  be  willfully  committed ; 
it  searches  not  into  the  intention  or  motive  any  further  or  other- 
wise than  as  they  are  the  marks  of  a  voluntary  act ;  and  having 
found  it  so,  it  concerns  itself  no  more  with  a  man's  design  or 
principle  of  acting,  but  punishes  without  scruple  what  mani- 
festly to  the  offender  himself  was  a  breach  of  the  command  of 
the  Legislature.  The  law  collects  the  intention  from  the  act 
itself — the  act  being  in  itself  unlawful  [wrongful],  an  evil  in- 
tent is  inferred,  and  needs  no  proof  by  extrinsic  evidence.  That 
mischief  which  a  man  does  he  is  supposed  to  mean,  and  he  is 
not  permitted  to  put  in  issue  a  meaning  abstracted  from  the 
fact.  '  The  crime  consists  in  publishing  a  libel ;  a  criminal  inten- 
tion in  the  writer  is  no  part  of  the  definition  of  the  crime  of 
libel  at  common  law.'  '  He  who  scattereth  firebrands,  arrows, 
and  death  (which  if  not  an  accurate  is  a  very  intelligent  de- 
scription of  a  libel)  is  ea  ratione  criminal.'  It  is  not  incumbent 
on  the  prosecution  to  prove  his  intent,  and  on  his  part  he  shall 
not  be  heard  to  say,  'Am  I  not  in  sport.'  To  determine, 
therefore,  the  guilt  of  a  civil  act,  and  to  inflict  punishment  on 
the  offender,  there  is  no  need  of  knowing  his  motives.  Human 
laws  require  no  justification  in  imposing  penalties  for  an  act 
prohibited  by  the  magistrate,  in  its  consequences  injurious,  and 
which  has  indubitable  marks  of  being  voluntarily  committed." 
This  exhibits  and  illustrates  our  view  that  the  intent  which  the 
law  regards  is  that  intent  which  enters  into  the  question  :  was 
the  act  voluntary?  and  this  it  determines  by  the  knowledge 
of  the  actor,  did  he  know  or  ought  he  to  have  known,  that  his 
act  would  produce  an  injury,  if  he  had  this  knowledge,  or  might, 
but  for  his  own  misfeasance  or  omission,  have  had  this  knowl- 
edge, he  is  liable  for  his  act  and  its  consequences.  And  it  is 
altogether  immaterial  whether  we  say  he  is  liable  for  the  act 
and  its  consequences,  or  say  he  is  liable  for  the  act  because  it 
was  voluntary,  and  for  the  consequences  because  he  must  be 
presumed  to  have  intended  them.  The  latter  mode  of  statement 
is  the  more  usual,  but  we  think  less  correct,  and  may  have  con- 
tributed to  the  confusion  which  pervades  our- subject. 


CHAPTER  VI. 

PUBLICATION — PUBLISHER. 

A  Publication  is  Necessary.  Meaning  of  the  term  Publica- 
tion. The  Language  Published  must  be  Understood.  The 
Publication  may  be  Orally  or  in  Writing.  What  amounts 
to  an  Oral  and  what  to  a  Written  Publication.  Publica- 
tion of  Effigy.  Requisites  of  an  Oral  Publication.  Requi- 
sites of  a  Written  Publication.  Time  of  Publication. 
Place  of  Publication.  Who  is  a  Publisher.  Republica- 
tion and  Repetition — Distinction  between.  Joint  Publi- 
cation. Liability  for  Publications.  Voluntary  and  In- 
volun  tary  Publications.  Liability  of  Principal  and  Agent. 
Newspaper  Publisher.     Bookseller. 

§  93.  As  heretofore  observed  (§  23),  for  language  to  aifect 
another  than  its  author  the  language  must  be  published ;  ^that  is 

93  To  publish,  means  not  only  a  "  giving  out,"  but  a  "  taking  in."  In  English 
we  have  only  one  word  to  express  the  idea,  in  the  German  they  have  two  words. 
They  say  of  a  book  herausgegeben  that  it  is  "  given  out,"  but  not  that  it  is  pub- 
lished until  sales  of  it  have  been  effected. 

"  Publication  [of  a  writing]  is  nothing  more  than  doing  the  last  act  for  the 
accomplishment  of  the  mischief  intended  by  it."  (Hex  v.  Burdett,  4  B.  &  Aid. 
126.) 

"  The  sense  in  which  the  word  published  is  used  in  law,  is  an  uttering  of  the 
libel.  Though  in  common  parlance  that  word  may  be  confined  in  its  meaning  to 
making  the  contents  known  to  the  public,  yet  the  meaning  is  not  so  limited  in 
law.  The  making  it  known  to  an  individual  only  is  indisputably,  in  law,  a  pub- 
lishing.    (Id.) 

The  mode  of  publication  of  writings  in  early  times  was  by  scattering  them  in 
the  highways.  The  conclusion  of  "  The  Outlaw's  Song  of  Trail-lebaston,"  temp. 
Edward  II.,  is  as  follows  : 

Escrit  estoit  en  parchemyn  pur  mout  remember 
E  gitte  en  haut  chemyn  qe  urn  le  dust  trover. 


PUBLICATION.  89 

to  say,  it  must  be  communicated  to  some  other  than  its  author. 
There  must  be  a  publication.94 

§  94.  Publication  is  an  ambiguous  term,  employed  to  signify 
sometimes  the  matter  published,  sometimes  an  act  of  publish- 
ing only,  and  sometimes  an  act  of  publishing  such  as  may  sub- 


fit  was  written  on  parchment  to  be  better  remembered,  and  cast  on  the  high, 
way  that  people  may  find  it.]  See  Political  Songs  of  England  from  John  to 
Edward  II.  Edited  and  translated  by  Thomas  Wright,  Camden  Society,  1839. 
(Astor  Library.)     Arid  see  London  Quarterly  Review,  April,  1857. 

This  method  of  publication  seems  to  hare  continued  at  least  until  the  six- 
teenth century.  John  Fox  mentions  "  A  libel  or  book  entitled  the  Supplication 
of  Beggars,  thrown  and  scattered  at  the  procession  in  Westminster,  on  Candle- 
mas day  (2d  February,  1526),  before  King  Henry  the  Eighth,  for  him  to  read  and 
peruse ;"  and  again,  Wolsey  immediately  went  to  his  Majesty  (Henry  Eighth) 
complaining  of  divers  seditious  persons  having  scattered  abroad  books.  The 
like  mode  of  publication  was  adopted  by  Burdet,  tried  "  for  conspiring  to  kill 
the  king  and  the  prince  by  casting  their  nativities,  foretelling  the  speedy  death 
of  both,  and  scattering  letters  containing  the  prophecy  among  the  people."  9 
Foss's  Judges  of  England,  and  Croke  Car.  121. 

The  meaning  and  etymology  of  the  word  Trail-lebaston  is  discussed  in  9 
Foss's  Judges  of  England,  and  note  to  Political  Songs  of  England,  and  claimed 
to  be  different  from  that  given  in  the  Law  Dictionaries. 

That  the  mode  of  publication  of  libels  among  the  Romans  was  by  scattering 
them  on  the  highways  may  be  inferred  from  the  provisions  in  the  Codes  in  refer- 
ence to  the  rinding  and  finders  of  libels.  The  4th  resolution  in  Halliwood's  Case, 
in  Coke's  fifth  report  commences,  "  If  any  one  find  a  libel."  (See  2  Starkie  on 
Libel,  226.) 

A  new  method  of  framing  and  dispersing  libels  was  invented,  says  Hume,  by 
the  leaders  of  popular  discontent:  petitions  to  Parliament  were  drawn  up  stating 
particular  grievances,  presented  and  immediately  printed. 

A  most  cowardly  and  atrocious,  yet  ingenious,  method  of  defaming  is  men- 
tioned by  Hazlitt  in  his  "  Essay  on  Wills,"  and  referred  in  the  London  Quar- 
terly Review  for  October,  1860,  as  thus:  "  A  wealthy  nobleman  hit  upon  a  still 
more  culpable  device  for  securing  posthumous  ignominy.  He  gave  one  lady  of 
rank  a  legacy  '  by  way  of  compensation  for  injury  he  feared  he  had  done  her 
fair  fame ; '  a  large  sum  to  the  daughter  of  another,  a  married  woman,  '  from  a 
strong  conviction  that  he  was  the  father ;'  and  so  on  through  half  a  dozen  more  items 
of  the  sort,  each  leveled  at  the  reputation  of  some  one  from  whom  he  had  suf- 
fered a  repulse  ;  the  whole  being  nullified  (without  being  erased)  by  a  codicil." 

94  There  must  be  a  publication.  (Lyle  v.  Clason,  1  Cai.  581  ;  Weir  v.  Hass,  6 
Ala.  881.) 


90  PUBLICATION. 

ject  the  publisher  to  legal  liability.     Ordinarily  the  context  will 
disclose  in  which  of  these  several  senses  the  term  is  employed. 

§  95.  Every  communication  of  language  by  one  to  another 
is  a  publication.  But  to  constitute  an  actionable  publication, 
that  is,  such  a  publication  as  may  confer  a  remedy  by  civil 
action,  it  is  essential  that  there  be  a  publication  to  a  third  per- 
son, that  is,  to  some  person  other  than  the  author  or  publisher 
and  he  whom  or  whose  affairs  the  language  concerns.  No  pos- 
sible form  of  words  can  confer  a  right  of  action  for  slander  or 
libel,  unless  there  has  been  a  publication  to  some  third  person.95 
The  husband  or  wife  of  the  author  or  publisher,  or  the  husband 
or  wife  of  him  whom  or  whose  affairs  the  language  concerns,  is 
regarded  as  a  third  person.96 


96  2  Starkie  on  Libel,  13,  14,  citing  1  W.  Saund.  132,  note  2 ;  Phillips  v.  Jan- 
son,  2  Esp.  Cas.  226;  Hicks'  Case,  Hob.  215;  Rex.  v.  Wegener,  2  Stark.  Cas.  245. 
Where  the  defendant,  knowing  that  letters  addressed  to  the  plaintiff  were  opened 
and  read  by  his  clerk,  wrote  and  sent  a  letter  directed  to  the  plaintiff  which  was 
opened  and  read  by  his,  plaintiff's,  clerk,  this  was  held  to  be  a  publication.  {Dela- 
croix v.  Thevenot,  2  Starkie's  Cas.  63.)  Where  a  letter,  folded  but  not  sealed,  was 
delivered  to  a  third  person  to  be  conveyed  to  the  plaintiff,  and  was  so  conveyed 
without  being  read  by  any  one,  held  there  was  no  publication.  ( Clutterbuck  v. 
Chaffers,  1  Starkie's  Cas.  4*71.)  Where  a  writing  is  sent  to  the  plaintiff,  and  he, 
in  the  presence  of  a  third  person,  repeats  the  contents  of  such  writing  to  the 
writer,  who  admits  having  sent  such  a  writing,  this  is  not  a  publication  of  the 
writing  to  the  third  party.     (Fonville  v.  Nease,  Dudley  (S.  C),  303.) 

The  delivery  of  a  writing  by  the  governor  of  a  colony  to  his  attorney-gen- 
eral, not  for  an  official  purpose,  is  an  actionable  publication.  ( Wyatt  v.  Gore, 
Holt,  299.)  So  is  the  delivery  of  a  writing  to  any  third  person.  {Ward  v. 
Smith,  6  Bing.  749.) 

96  A  sealed  letter,  addressed  and  delivered  to  the  wife,  containing  a  libel  on 
her  husband,  is  a  publication.  {Schenck  v.  Schenck,  1  Spencer,  208 ;  Wenman  v. 
Ash,  13  Com.  B.  836. 

Gibbons  wrote  defamatory  matter  of  Trumbull  and  had  fifty  copies  printed  in 
pamphlet  form  in  Massachusetts.  Forty-five  copies  he  retained  and  five  copies 
he  sent  to  his  wife  in  New  Jersey,  indorsing  four  of  them  with  the  names  of  cer- 
tain persons,  acquaintances  of  the  wife,  but  without  any  instructions  to  the  wife 
as  to  how  she  should  dispose  of  the  copies  so  sent  her.  The  wife  delivered  two  of 
the  copies  in  New  Jersey  to  the  persons  whose  names  were  indorsed  thereon,  and 
the  others  she  delivered  in  New  Jersey  to  Trumbull,  who  exhibited  them   to 


PUBLICATION.  91 

§  96.  There  cannot  properly  be  said  to  be  a  communication 
of  language  by  one  to  another  unless  that  other  understands 
the  signification  or  meaning  of  the  language  sought  to  be  com- 
municated. When  we  say  the  language  must  be  understood  by 
the  one  to  whom  it  is  published,  we  mean  only  that  the  matter 
published  must  be  in  a  language  which  the  person  to  whom  it 
is  published  can  interpret  to  some  meaning.  To  one  who  does 
not  understand  the  language  in  which  a  publication  is  made,  it 
is  as  to  him  nothing  more  than  unmeaning  sounds  or  signs  and 
not  language  (§  l).97 

§  97.  The  publication  of  language  may,  in  reference  to  the 
place  at  which  the  publication  is  made,  be  either  in  the  vernac- 
ular or  in  a  foreign  language.  Where  the  language  published 
is  the  vernacular  to  the  place  of  publication,  it  requires  no 
proof  that  those  who  heard  or  read  it  understood  it ;  but  it  may 
be  shown  that  those  who  heard  or  read  such  language  did  not 
in  fact  understand  its  signification.  Where  the  language  pub- 
lished is  one  foreign  to  the  place  of  publication  it  will  not  be  as- 
sumed that  those  who  heard  or  read  it  understood  it,  but  it  may 
be  shown  that  such  hearers  or  readers  did,  in  fact,  understand 
what  they  heard  or  read.98     Where  the  matter  published  is  in  a 

various  persons.  On  Trumbull  suing  Gibbons  in  New  York  for  libel,  it  was  con- 
tended for  defendant  (1)  that  tbere  was  no  publication  by  defendant,  (2)  or  no 
publication  within  the  State.  The  second  point  was  overruled,  and  as  to  the  first 
it  was  held  that  the  delivery  of  the  manuscript  to  be  printed  was  a  publication,  and 
although  a  delivery  to  a  wife  in  confidence  would  not  be  a  publication,  yet  in  the 
case  then  before  the  court  the  wife  acted  as  the  agent  of  her  husband,  and  her 
delivery  of  the  pamphlets  amounted  to  a  publication  by  the  defendant.  (Trum- 
bull v.  Gribbons,  3  City  Hall  Recorder,  97.) 

97  "  Scandalous  words,  if  they  be  spoken  in  an  unknown  tongue  which  none  of 
the  auditors  understand,  will  not  bear  an  action  because  they  do  no  injury." 
(Danvers  Abr.  146,  pi.  1,  2.)  "  Where  slander  is  published  in  a  foreign  language 
it  is  necessary  to  show  that  the  hearers  understood  the  language  "  (2  Starkie  on 
Slander,  52  ;  Fleetwood  v.  Cur  ley,  Hob.  267 ;  Viner's  Abr.  tit.  Actions  for  Words, 
A.  b.),  for  the  slander  and  damage  consist  in  the  apprehension  of  the  hearers. 
(Cro.  Eliz.  496,  pi.  16.) 

96  Amann  v.  Damm,  8  Com.  B.  N.  S.  597.  But  in  Ohio  it  is  held  that  where 
words  are  spoken  in  German  in  a  German  county,  it  will  be  presumed  they  were 


92  PUBLICATION. 

language  which  he  who  hears  or  reads  it  understands,  it  will  be 
assumed  he  understood  it  in  the  sense  which  properly  belongs 
to  it.  In  all  cases  of  doubt,  the  question  whether  or  not 
the  third  person  to  whom  the  publication  was  made  understood 
the  language  employed,  is  a  question  of  fact.  How  such  third 
person  understood  the  language,  that  is  to  say,  the  sense  in 
which  he  understood  it,  is  ordinarily  a  question  of  inter- 
pretation. In  our  courts  a  witness  cannot  be  asked  how  he 
understood  the  language,  or  what  he  understood  by  the  lan- 
guage.99 

§  98.  The  publication  of  language  may  be  orally  or  in 
writing.  The  distinction  between  these  two  modes  of  publica- 
tion is  material  to  be  observed,  as  it  marks  the  boundary  line 
between  slander  and  libel.  That  alone  is  a  libel  winch  "  has  an 
existence  per  se  off  the  tongue."  10° 

§  99.  "Where  language  has  not  been  reduced  to  writing,  its 
communication  from  one  to  another  must  be  an  oral  publica- 
tion. Where  the  language  has  been  reduced  to  writing,  its 
communication  from  one  to  another  may,  according  to  the  cir- 
cumstances of  the  communication,  amount  to  either  an  oral 
publication  or  a  publication  in  writing. 

§  100.  As  respects  oral  language,  speech,  we  must  distin- 
guish between  the  sound  itself  and  the  signification  of  the 
sound.     As  respects  language  in  writing,  we  must  distinguish 

understood,  and  no  averment  that  they  were  understood  is  necessary.  (Bechtell 
v.  Shatter,  Wright,  107.)  And  as  to  Welsh  words  see  what  is  said  1  W.  Saund. 
242,  n.  1. 

99  Smart  v.  Blanchard,  42  N.  H.  137  ;  Wright  v.  Paige,  36  Barb.  438  ;  Gib- 
son v.  Williams,  4  Wend.  320 ;  Van  Vechten  v.  Hopkins,  5  Johns.  211.  A  wit- 
ness who  has  heard  a  conversation  cannot  be  asked  "  What  did  you  understand 
by  that,"  without  previously  laying  a  foundation  for  such  a  question  by  showing 
that  something  had  previously  occurred  in  consequence  of  which  the  words  would 
convey  a  meaning  different  to  their  ordinary  meaning ;  having  done  so,  the  wit- 
ness may  then  be  asked  "  What  did  you  understand,"  <kc.  (Haines  v.  Hartley,  3 
Ex.  200;  11  Law  Times,  271:  see  2  Starkie  on  Libel,  52;  Fleetwood  v.  Curley, 
Hob.  267.)     See  post,  Construction. 

100  Holt  on  Libel,  254. 


PUBLICATION.  93 

between  the  writing,  the  paper,  or  other  substance  written  npon  ; 
the  writing,  the  characters  inscribed  upon  the  paper,  or  other 
substance  written  upon ;  and  the  signification  of  those  inscribed 
characters,  the  subject-matter  of  the  writing. 

§  101.  The  possession  of  a  writing,  the  material  written 
upon,  may  be  parted  with,  and  the  writing  itself,  the  material 
written  upon,  may  be  passed  from  hand  to  hand  without  any 
communication  of  either  the  characters  inscribed  upon  such 
material  written  upon,  or  of  the  signification  of  such  charac- 
ters. As,  for  example,  the  delivery  of  a  sealed  letter  to  an- 
other. Such  a  parting  with  the  writing  does  not  of  itself,  and 
without  more,  amount  to  a  publication  of  any  kind.  Thus 
where  a  folded  letter  was  delivered  to  a  third  person  to  deliver 
to  him  whom  the  subject-matter  of  the  letter  concerned,  and 
the  third  person  delivered  the  letter  as  addressed,  without  read- 
ing its  contents,  it  was  held  that  there  was  not  any  publication 
•  to  such  third  person.101 

§  102.  The  characters  inscribed  upon  a  paper  may  be  com- 
municated by  one  to  another  without  any  parting  with  the  pos- 
session of  the  writing,  the  material  written  upon,  itself ;  as  by 
an  exposure  of  the  writing,  the  material  written  upon,  in  such 
a  manner  as  that  the  characters  inscribed  upon  it  may  be  seen 
and  read  by  another,  this  would  be  a  publication  in  writing. 

§  103.  The  subject-matter  of  a  writing,  the  signification  of 
the  characters  inscribed  upon  a  paper,  may  be  communicated 


101  Clutterbuck  v.  Chaffers,  1  Starkie's  Cas.  4*71. 

Throwing  a  sealed  letter,  addressed  to  the  plaintiff  or  a  third  person,  into  the 
enclosure  of  another,  who  delivers  it  unopened  to  the  plaintiff  himself,  is  not  a 
publication.     {Fonville  v.  Nease,  Dudley,  S.  C.  303.) 

Sending  to  the  person  whom  the  writing  concerns  a  letter  sealed  up  is  no 
publication ;  and  a  letter  is  always  to  be  understood  as  being  sealed  up,  unless 
otherwise  expressed.  {Lyle  v.  Clason,  1  Cai.  581 ;  Phillips  v.Jansen,  2  Esp.  625.) 
See  1  W.  Saund.  132,  note  2. 

Nor  would  it  amount  to  a  publication,  though  the  plaintiff  afterwards  repeat- 
ed the  contents  of  it  publicly,  and  the  defendant  avowed  himself  the  author  of 
it.     (Fonville  v.  Nedse,  Dudley,  S.  C.  303.) 


94  PUBLICATION. 

orally  by  one  to  another ;  and  if  this  be  done  without  any  part- 
ing with  the  possession  of  the  writing  itself,  and  without  any 
exposure  of  such  writing  to  any  other  person ;  as  where  one 
reads  the  contents  of  a  writing  to  another  without  parting  with 
the  writing  itself,  and  without  permitting  the  other  to  read  the 
contents  of  such  writing.  This  we  suppose  would  amount  only 
to  an  oral  publication.102 

§  104.  Parting  with  the  possession  of  a  writing,  the  mate- 
rial written  upon,  in  such  a  condition  and  under  such  circum- 
stances as  that  the  characters  inscribed  upon  it  may  be  and  are 
seen  and  read  and  understood  by  another,  is  a  publication  in 
writing.  It  amounts  to  a  publication  if  or  provided  the  subject- 
matter  be  read  and  understood.103 

§  105.  An  exposure  by  one  person  to  another  of  a  writing, 
the  material  written  upon,  without  parting  with  the  possession 
of  such  writing,  but  permitting  the  writing,  the  characters  in- 
scribed, to  be  read  by  the  other,  is  a  publication  in  writing. 

102  The  writer's  reading  to  a  stranger  his  letter  to  the  plaintiff,  before  dis- 
patching it,  is  a  publication.  (Snyder  v.  Andrews,  6  Barb.  43;  Mc Combs  v. 
Tuttle,  5  Blackf.  431 ;  Van  Cleefv.  Lawrence.  2  City  Hall  Recorder,  41.)  Query, 
the  kind  of  publication. 

103  Posting  a  writing  in  a  public  place,  and  taking  it  down  before  any  one  had 
read  it,  would  not  be  a  publication.     (2  Starkie  on  Libel,  16,  note  n.) 

A  publication  by  delivery  of  letters  containing  the  defamatory  matter,  or  by 
posting  the  writing  on  a  church  door,  are  termed  constructive  publications  in 
Baldwin  v.  Elphinstone,  2  W.  Black.  Rep.  1037,  referring  to  Rastell's  Entries  tit. 
Action  sur  le  case,  13 ;  Penson  v.  Qooday,  3  Cro.  97,  327. 

By  section  17  of  statute  38  Geo.  III.,  ch.  78,  the  printer  or  publisher  of  every 
newspaper  or  other  such  paper  is  required  to  deliver  a  copy  of  the  paper  at  the 
stamp  office,  it  was  held  that  such  delivery  was  a  publication.    (Rez  v.  AmphliM, 

4  B.  &  Cr.  35.) 

If  A.  sends  a  manuscript  to  the  printer  of  a  periodical  publication,  and  does 
not  restrain  the  printing  and  publishing  of  it,  and  he  prints  and  publishes  it  in 
that  publication,  A.  is  the  publisher,  and  liable  to  an  action.     (Burdett  v.  Cobbett, 

5  Dowl.  301.     See  Bond  v.  Douglas,  7  Car.  &  P.  626.) 

Printing,  *  *  unless  qualified  by  circumstances,  is  prima  facie  a  publish- 
ing, the  manuscript  must  be  delivered  to  the  compositors.  (Baldwin  v.  Elphin- 
stone, 2  W.  Black.  Rep.  1037;  Holt  on  Libel,  293  ;  Trumbull  v.  Gibbons,  3  City 
Hall  Recorder,  97.) 


PUBLICATION.  95 

§  106.  Effigy  resembles  a  writing,  the  material  written  upon, 
as  distinguished  from  the  subject-matter  of  a  writing.  An  ex- 
posure of  an  effigy  or  a  parting  with  the  possession  of  it  in  such 
a  condition  that  it  may  be  seen  by  another  is  a  publication. 

§  107.  The  requisites  of  cm  oral  publication  are :  (1)  that 
the  language  be  spoken  to  or  in  the  presence  of  at  least  some 
one  third  person  (§  95).  No  possible  form  of  words  can  be  the 
basis  of  an  action  for  slander  if  at  the  time  of  their  utterance 
the  only  persons  present"  are  the  speaker  and  the  person  whom 
or  whose  affairs  the  language  concerns.104  (2)  The  third  person 
present  must  hear  the  language  spoken.105  "Whether  the  third 
person  present  at  the  speaking  did  or  did  not  hear  the  language 
spoken  is,  in  every  case,  a  question  of  fact.  And  this  is  not  the 
less  the  rule,  because  where  the  speaking  is  in  the  presence  of  a 
third  person,  under  such  circumstances  that  he  might  have 
heard  what  was  spoken,  he  may,  as  a  rule  of  evidence,  be  as- 
sumed to  have  heard  it,  unless  it  be  shown  that  he  did  not 
hear.106  The  burden  is  on  him  who  alleges  a  publication  to  es- 
tablish that  the  third  person  heard  the  language  spoken.  (3) 
The  third  person  must  understand  the  language  (§  96).  When 
hereafter  we  speak  of  an  oral  publication,  or  a  publication 
orally,  we  shall  intend  a  publication  with  the  requisites  above 
mentioned. 

§  108.  The  requisites  of  a  publication  in  writing  are  (1) 
that  the  writing,  the  material  written  upon,  be  so  exposed  as  that 


J04  Uttering  slanderous  words  in  the  presence  of  the  person  slandered  only  is 
not  actionable.     (Sheffill  v.  Van  Deusen,  13  Gray,  304);  and  see  note  95,  ante. 

105  "  If  none  heard  the  words  it  is  no  slander."  Viner's  Abr.  tit.  Actions  for 
Words.     L.  b.  4 ;  and  see  cases  cited,  1  Caines'  R.  582. 

)C  The  word  "  publish,"  as  applied  to  speech,  implies  that  the  language  was 
spoken  in  the  presence  and  hearing  of  others.  (Watts  v.  Greenlee,  2  Dev.  115  ; 
Viner's  Abr.  tit.  Actions  for  Words,  L.  b.  4 ;  contra,  Burton  v.  Burton,  3  Iowa, 
316.)  In  slander  it  is  sufficient  if  the  words  are  laid  to  have  been  spoken  "  in 
the  presence"  of  others.  [Brown  v.  Brashier,  2  Penns.  114.)  Or  in  the  presence 
and  hearing  of  divers  persons,  or  of  certain  persons  named.  [Burbank  v.  Horn, 
39  Maine,  233),  and  see  1  W.  Saund.  242,  n.  1. 


96  PUBLICATION. 

the  subject-matter  of  the  writing  is  read  by  at  least  some  one 
third  person  (§  101).  No  possible  form  of  language  in  writing 
can  be  the  basis  of  an  action  for  libel  if  read  only  by  the 
writer  and  the  person  whom  or  whose  affairs  the  language 
concerns.107  (2)  The  subject-matter  of  the  writing  must  be  un- 
derstood by  at  least  some  one  third  person  by  whom  it  is  read 
(§  96).  When  hereafter  we  speak  of  a  publication  in  writing, 
we  shall  intend  a  publication  with  the  requisites  above  men- 
tioned. 

§  109.  The  publication  must  he  prior  to  the  commencement 
of  the  action,  and  a  publication  prior  to  the  commencement  of 
the  action  should  be  proved.108  Where  a  witness  called  to  prove 
publication  was  unable  to  say  whether  the  speaking  the  words 
referred  to  was  before  or  after  the  date  when  the  action  was 
commenced,  it  was  decided  that  his  testimony  was  not  admis- 
sible.109 But  it  was  held  not  to  be  a  ground  for  arresting 
the  judgment  that  it  appeared  on  the  face  of  the  record  that 
the  writ  issued  prior  to  the  alleged  publication.110 

§  110.  The  place  of  publication  may  be  within  or  without 
the  territorial  limits  of  the  State  or  country  within  which  re- 
dress is  sought.  The  decisions,  so  far  as  they  go,  all  hold,  that 
as  a  question  of  jurisdiction,  it  is  immaterial  whether  the  pub- 
lication was  within  or  without  the  territorial  limits  of  the  State 
or  country  within  which  redress  is  sought,  and  this  on  the 
ground  that  the  wrong  follows  the  person  and  may  be  redressed 
by  civil  action  in  any  court  having  jurisdiction  of  the  person  at 
the  time  redress  is  sought.  It  is  conceded,  however,  that  as  re- 
gards crimes  no  redress  can  be  had  in  one  State  for  a  crime 
enacted  within  the  territorial  limits  of  another  State,  because 
a  crime  is  a  violation  of  the  law  of  the  State  within  which  it  is 

107  But  delivery  to  the  party  libelled  is  a  sufficient  publication  to  support  an 
indictment.     {Phillips  v.  Jansen,  2  Esp.  624.) 

108  Taylor  v.  Sturgingger,  2  Rep.  Con.  Ct.  367. 

109  Steward  v.  Layton,  3  Dowl.  Pr.  Cas.  430. 

110  Scovel  v.  Kingsley,  V  Conn.  R.  281. 


PUBLICATION.  97 

enacted.  This  concession  implies  that  for  a  wrong  committed 
in  one  State  there  can  be  no  remedy  iD  another ;  because  the 
right  to  a  remedy  is  based  on  a  violation  of  some  general  pro- 
hibition of  the  law,  and  not  like  a  remedy  on  contract  for  a 
breach  of  a  private  convention  between  the  parties,  which  of 
course  follows  the  persons  of  the  parties  to  the  convention.111 

111  Mr.  Stephens,  in  his  "  Treatise  on  Criminal  Law,"  insists  that  a  crime  and 
a  tort  differ  only  as  regards  their  consequences. 

No  court  "  administers  justice  in  general "  (De  Bode  v.  Reg.,  13  Ad.  &  El.,  N.  S. 
386),  and  "  the  laws  of  a  State  have  no  force  proprio  vigore  beyond  its  territorial 
limits."  {Hoyt  v.  Thompson,  1  Selden,  340.)  "  If  two  persons  fight  in  France, 
and  both  happening  casually  to  be  here  [in  England],  one  should  bring  an  action 
of  assault  against  the  other,  it  might  be  doubtful  whether  such  an  action  could 
be  maintained  here  [in  England].  *  *  *  It  might  perhaps  be  triable  only 
where  both  parties  at  the  time  were  subjects."  (Mostyn  v.  Fabrigas,  20  State  Tr. 
82;  1  Smith's  Leading  Cases.)  In  Molony  v.  Bows  (8  Abb.  Pr.  R.  316)  it  was 
held  at  nisi  prius,  but  after  elaborate  argument  and  deliberation,  that  an  action 
for  an  assault  in  California  could  not  be  maintained  in  the  courts  of  the  State  of 
New  York.  In  Mclvor  v.  McCabe{U  Abb.  Pr.  R.  319),  it  was  held  that  the 
courts  of  New  York  had  jurisdiction  of  an  action  for  a  personal  injury  committed 
in  New  Jersey  by  one  citizen  of  that  State  upon  another.  As  to  actions  for  tort 
committed  in  a  foreign  country,  see  Scott  v.  Seymour,  6  Law  Times  Rep.  N.  S. 
607. 

To  maintain  an  indictment  for  libel,  the  publication  must  be  proved  to  have 
been  made  in  the  county  laid  in  the  indictment,  all  matters  of  crime  being  local. 
(Holt  on  Libel,  299  ;  citing  Rex  v.  Johnson,  7  East,  65.)  In  Trumbull  v.  Gibbons, 
3  City  Hall  Recorder,  97,  the  libel  was  printed  in  Boston  and  published  in  New 
Jersey,  but  held  the  courts  of  New  York  had  jurisdiction ;  and  see  Glen  v.  Hodges, 
9  Johns.  67;  Smith  v.  Bull,  17  Wend.  323. 

If  one  of  our  citizens  goes  into  Canada  and  slanders  his  neighbor,  an  action 
will  lie  in  this  State.     (Lister  v.  Wright,  2  Hill,  320.) 

An  action  for  slander  will  lie,  in  Indiana,  for  words  spoken  in  another  State 
actionable  at  common  law.  ( Offutt  v.  Earlywine,  4  Blackf.  460 ;  Linville  v.  Early- 
wine,  4  Blackf.  469;  Stout  v.  Wood,  lid.  71.)  And  the  same  in  Connecticut. 
(Langdon  v.  Young,  33  Verm.,  4  Shaw,  136.) 

In  an  action  of  slander  brought  in  Indiana,  it  will  be  presumed,  until  the  con- 
trary be  proved,  that  they  were  spoken  in  that  State.  ( Worth  v.  Butler,  7  Blackf. 
251.) 

It  is  sometimes  necessary  to  show  a  publication  in  a  particular  county.  Where 
the  defendant  wrote  letters  in  Ireland,  and  sent  them  to  Middlesex  county?  En- 
gland, to  be  printed  and  published,  and  the  letters  were  there  published,  ifc  was 
held  to  be  a  publication  by  the  defendant  in  Middlesex  county.  {Rex  v.  Johnson, 
7  East,  65;  and  to  the  like  effect  Rex  v.  Middleton,  Str.  77.)  Where  A.  wrote 
a  letter  and  sent  it  by  mail  to  B.,  in  the  county  of  B.,  and  it  was  again  sent  by 
7 


98  PUBLISHER. 

The  effect  of  the  place  of  publication  upon  the  construction  of 
the  language  published,  and  as  a  question  of  venue,  and  as 
affecting  the  liability,  will  hereafter  be  considered. 

§  111.  The  person  who  makes  a  publication  is  a  publisher. 
In  the  text  books,  and  in  reference  to  slander  and  libel,  the  term 
publisher  is  employed  sometimes  to  signify  the  person  who 
actually  makes  a  publication,  and  sometimes  the  person  who, 
not  being  the  actual  publisher,  is  liable  for  the  publication ;  is 
liable,  as  publisher.  We  shall  always  employ  the  term  pub- 
lisher in  the  sense  of  and  to  signify  the  person  who  actually 
makes  the  publication. 

§  112.  Republication  is  a  second  or  subsequent  publication 
of  the  same  language.  Repetition  is  a  publication  of  language 
of  the  same  import  or  meaning,  as  the  language  of  a  previous 
publication.  Repetition  is  a  subsequent  publication  independ- 
ent and  distinct  from  the  first  publication.  There  may  be  a 
republication  of  a  writing,  the  material  written  upon,  there 
may  be  a  repetition  of  the  subject-matter  of  a  writing,  and 
there  may  be  a  repetition  of  oral  language  (speech),  but  there 
cannot  be  a  republication  of  oral  language. 

§  113.  Speech  is  but  sound,  a  mere  vibration  of  the  atmos- 
phere, cognizable  only  by  the  auditory  sense.  From  its  nature 
it  necessarily  follows  that  the  same  sound  cannot  be  repeated ;  a 
similar  or  a  like  sound  may  be  produced,  undistinguishable  in 
every  respect  from  the  first,  and  of  the  like  character  and  sig- 
nification, but  that  will  not  be  the  same  sound.  One  who  re- 
mail  to  the  county  of  M.,  at  which  county  B.  received  and  read  it,  held  to  be 
a  publication  in  the  county  of  M.  (Rex  v.  Watson,  1  Camp.  215;  and  see  Rex  v. 
Oirdwood,  East's  P.  C.  1116,  1120;  Case  of  the  Seven  Bishops,  4  State  Trials, 
304;  Rex  v.  Burdett,  4  B.  &  A.  717;  2  Starkie  on  Slander,  39-43;  Common- 
wealth v.  Blanding,  3  Pick.  304.) 

In  an  action  for  suspending  a  lamp  before  the  plaintiff's  house,  intimating  that 
it  was  a  house  of  ill-fame,  the  parish  in  which  the  declaration  states  the  house  to 
have  stood  and  the  tort  to  have  been  committed,  is  to  be  considered  as  venue 
merely,  and  not  as  local  description,  and  it  is  immaterial  whether  there  be  any 
such  parish  in  existence.  [Jefferies  v.  Buncombe,  2  Camp.  3;  11  East,  226.)  And 
see  Mersey  Navigation  Company  v.  Douglas,  2  East,  497. 


PUBLISHER.  99 

peats  a  word  previously  spoken  does  not  utter  the  identical 
word,  but  a  similar  or  like  word  ;  he  repeats  a  like  sound  of  the 
same  signification  as  the  first.  The  two  sounds  are  separate 
and  distinct,  although  each  has  the  same  meaning.  Hence  each 
publication  of  oral  language  is  a  new,  distinct,  and  separate 
publication. 

§  114.  As  respects  oral  publications,  the  person  who  actually 
makes  the  publication,  the  publisher,  and  the  person  liable  as 
the  publisher,  must  be  always  one  and  the  same  person.  Every 
speaker  is  the  publisher  of  what  he  speaks,  and  is  solely  liable 
therefor.  That  the  words  spoken  have  been  previously  pub- 
lished by  another,  can  neither  relieve  the  subsequent  speaker 
from  his  liability  for  the  publication  made  by  him,  nor  impose 
any  liability  on  the  previous  publisher.  The  act  of  publication 
is  as  to  each  publisher  an  entirely  distinct  act.  Each  person 
can  be  liable  only  for  the  publication  made  by  him.  If  one 
makes  an  oral  publication,  and  another  repeats  it,  the  first  pub- 
lisher is  not  liable  for  the  repetition.112  Besides  that,  the  repe- 
tition is  not  a  repetition  of  the  same  language  (§  113).  The 
repetition  is  neither  a  necessary  nor  a  natural  and  proximate 
consequence  of  the  first  publication. 

§  115.  As  respects  a  publication  by  writing,  a  libel,  not  only 
the  publisher  but  all  who  in  anywise  aid  or  are  concerned  in  the 
production  of  the  writing  are  liable  as  publishers ;  the  publica- 
tion of  the  writing  is  the  act  of  all  concerned  in  the  production 
of  the  writing  (§  113).  Thus,  if  one  composes  and  dictates,  a 
second  writes,  and  a  third  publishes,  all  are  liable  as  publishers, 
and  each  is  liable  as  a  publisher.113 

112  Where  A.  uttered  a  slander  of  B.  the  wife  of  C,  and  B.  repeated  the  slander 
to  C,  in  consequence  of  which  C.  refused  to  cohabit  with  B.,  held  that  no  action 
could  be  maintained  against  A. ;  the  publication  was  not  A.'s,  and  A.  was  not  respon- 
sible for  the  consequences  of  it.  {Parkins  v.  Scott,  6  Law  Times  Rep.  N.  S.  394.) 
The  person  who  originates  the  slander  ©an  only  be  liable  for  the  special  damage 
occasioned  by  his  own  communication  of  it.  {Gates  v.  Kellogg,  9  Ind.  506  ;  Dixon 
v.  Smith,  5  Hurl.  <fe  Nor.  450.) 

113  All  concerned  in  making  a  libel  are  alike  liable.  ,JThe  law  denominates 
them  all  makers."     (Holt  on  Libel,  288,  289 ;  2  Starkie  on  Slander,  225  ;  Bishop's 


100  PUBLISHER. 

§  116.  The  mere  composing  or  writing  any  certain  form  of 
words,  and  keeping  the  writing  and  its  contents  confined  to  the 
custody  and  to  the  knowledge  of  the  composer  or  writer,  so  that  it 
is  not  communicated  to  any  other  person,  does  not  render  the 
composer  or  writer  liable  either  to  indictment  or  to  civil  action, 
for  there  is  no  publication.  So,  having  or  retaining  possession 
of  a  writing,  no  matter  by  whom  written,  cannot  amount  to  a 
wrong  by  the  person  so  having  or  retaining  possession  of  such 
writing  ;  for  as  to  him,  at  least,  there  is  no  publication.114     The 


Crim.  Law,  §  931  [814],  citing  Rex  v.  Drake,  Holt,  425;  Rex  v.  Paine,  5  Mod. 
163  ;  Rex  v.  Bear,  Carth.  40V  ;  Rex  v.  Williams,  2  Camp.  646.)  "All  persons  who 
concur  and  show  their  assent  or  approbation  to  do  an  unlawful  act,  are  guilty ;  so 
that  murdering  a  man's  reputation  by  a  scandalous  libel  may  be  compared  to 
murdering  his  person ;  and  if  several  are  assenting  and  encouraging  a  man  in 
that  act,  though  the  stroke  was  given  by  one,  yet  all  are  guilty  of  homicide." 
(Quoted  by  Kent,  Ch.  J.,  in  Dole  v.  Lyon,  10  Johns.  461.) 

The  publisher  is  equally  responsible  with  the  author  of  a  libel.  {Dexter  v. 
Spear,  4  Mason,  115.)  Printer  and  editor  are  both  liable.  (Watts  v.  Eraser,  7 
Car.  <fe  P.  369.)  The  responsibility  of  the  writer  of  a  private  letter  for  the  pub- 
lication of  its  contents,  is  not  limited  to  the  consequences  of  a  communication  of 
them  to  the  person  to  whom  the  letter  is  addressed,  but  extends  to  the  probable 
consequences  of  thus  putting  the  letter  in  circulation.  (Miller  v.  Butler,  6 
Gush.  71.) 

Where,  in  case  for  oral  and  written  slander,  to'  support  the  count  on  the  lat- 
ter, a  reporter  to  a  newspaper  was  called,  who  proved  that  he  had  written  down 
from  the  defendant's  mouth  (who  said  at  the  time  it  would  make  a  good  case  for 
the  newspapers)  the  statement  which  he  afterwards  sent  to  the  editor,  and  that  a 
paragraph,  which  afterwards  appeared,  was  in  substance  the  same  ;  held,  that 
what  was  so  published  in  consequence  of  what  passed  with  the  defendant  might 
be  considered  as  published  by  the  defendant ;  but  to  prove  that  what  was  pub- 
lished was  the  same  as  that  given  to  the  editor  by  the  reporter,  could  only  be 
done  by  producing  the  written  paper  itself.     (Adams  v.  Kelly,  1  Ry.  &  M.  158.) 

Two  persons  having  participated  in  the  composition  of  a  libelous  letter  writ- 
ten by  one  of  them,  which  was  afterwards  put  into  the  post-office,  and  sent  by 
mail  to  the  person  to  whom  it  was  addressed ;  such  participation  was  held  to  be 
competent  and  sufficient  evidence  to  prove  a  publication  by  both.  (Miller  v.  But- 
ler, 6  Cush.  71.)     And  see  Rex  v.  Cooper,  15  Law  Jour.  Rep.  Q.  B.  206. 

114  Until  publication,  possession  of  a  libel  is  no  more  than  the  possession  of  a 
man's  thoughts.  (Rex  v.  Almon,  5  Burr.  2689.)  So  long  as  the  writer  retains 
possession  of  the  writing  he  has  a  locus  penitential ;  but  "  The  moment  a  man  de- 
livers a  libel  from  his  hands,  and  ceases  to  have  control  over  it,  there  is  an  end 
of  his  locus  penitentiee  ;  the  injuria  is  complete,  and  the  libeler  [the  writer]  may 


PUBLISHER.  101 

composer  and  the  writer  of  matter  -which  is  afterwards  pub- 
lished is  liable  as  publisher  for  such  publication.115  And  this 
liability,  as  we  suppose,  is  not  to  be  qualified  by  the  circum- 
stances under  which  the  publication  occurred.  It  would  be  no 
excuse  to  say  that  the  writing  was  kept  guarded  and  concealed, 
and  was  taken  from  him  by  force,  or  obtained  from  him  by 
fraud  or  by  the  procurement  of  the  party  whom  or  whose 
affairs  it  concerns.116  If  the  matter  written  is  of  an  injurious 
tendency,  and  any  injury  ensues  from  its  publication,  the  com- 
poser and  the  writer  is  liable,  not  because  of  any  imputed  or 
presumed  malice  in  making  the  publication,  but  because  unless 
such  a  writing  had  been  created  the  injury  occasioned  by  it 
could  not  have  happened  ;  creating  the  writing  and  preserving 
it  were  wrongful  acts,  for  the  necessary  or  natural  and  proxi- 
mate consequences  of  which  the  author  is  liable. 

§  117.  The  material  written  upon,  and  the  subject-matter 
inscribed  upon  such  material,  are  substantial  entities.  The 
very  identical  writing  may  be  passed  from  hand  to  hand,  and 
each  such  passage  is  as  well  a  separate  and  distinct  publication 
as  a  republication  of  such  writing.  Every  person  concerned  in 
making  such  a  publication  is  liable  not  alone  for  the  conse- 
quences of  that  publication,  but  for  the  consequences  of  any 
subsequent  publication  of  the  name  writing.  One  and  the  same 
writing  may  be  many  times  published  at  the  same  or  at  several 
and  distinct  places,  and  may  have  many  publishers  ;  and  many 
persons  may  be  liable  as  publishers  at  one  and  the  same  time 
or  at  several  times.     The  subject-matter  of  a  writing  cannot  be 

be  called  upon  to  answer  for  his  act"  (Rex  v.  Burdett,  4  B.  &  Aid.  143  ;  Holroyd, 
J.  i ;  and  see  5  Mod.  167  ;  Holt  on  Libel,  294  ;  2  Starkie  on  Slander,  228";  Rex  v. 
Rosenstein,  2  Car.  <fc  P.  414. 

115  Holt  on  Libel,  289 ;    Bond  v.  Douglass,  7  C.  <fe  P.  626  ;    Miller  v.  Butler,  6 
Cush.  71  :  BurdM  v.  Cobbett,  5  Dowl.  301  ;    Giles  v.  The  State,  6  Geo.  276. 

Where  the  plaintiff  sent  his  agent  to  the  office  of  the  defendant,  the  pub- 

li-her  of  a  newspaper,  to  purchase  a  copy  of  the  paper,  held  that  a  sale  to  such 

agent  was  a  publication  to  a  third  person.     |  Brunswick  v.  Hammer,  14  Q.  B.  185  ; 

see  King  x.  Waring,  5  Esp.  Cas.   13;   Smith   v.  Wood,  3  Camp.  323;   Thorn  v. 

r,  1  Denio,  488 ;   Griffiths  v.  Lewis.  7  Ad.  &-  Ell.  N.  8^,61  :    contra,  see  Sutton 

v  13  Mi--.  120.) 


102  PUBLISHER. 

republished  apart  and  separate  from  a  republication  of  the 
writing,  the  material  written  upon.  Apart  from  the  material 
on  which  the  matter  is  inscribed,  it  is  as  impossible  to  repub- 
lish the  same  subject-matter  of  a  writing  as  it  is  to  republish 
the  same  sound  or  oral  language  or  speech.  If  one  copies  the 
subject-matter  of  a  writing  upon  another  piece  of  material,  the 
copy  is  no  more  the  same  subject-matter  as  the  subject-matter 
copied  from,  than  is  the  repetition  of  a  sound  an  uttering  of  the 
same  sound.  The  copy  is  not  the  same  writing  but  another — a 
second  and  independent  writing,  having  the  like  but  not  the 
same  subject-matter.  A  publication  of  this  copy  would  have 
no  other  connection  with  the  original  than  that  it  contained 
the  like  subject-matter.  The  persons  liable  for  the  publication 
of  the  first  writing  would  not  be  liable  for  the  publication  of 
the  second  or  the  copy,  and  the  persons  responsible  for  the  publi- 
cation of  the  second  writing  would  not  be  responsible  for  the 
publication  of  the  original  writing.  The  publication  of  the 
second  writing  is  neither  a  necessary  nor  a  natural  and  proxi- 
mate consequence  of  the  publication  of  the  first  writing,  nor  is 
a  publication  of  the  first  writing  a  necessary  or  a  natural  and 
proximate  consequence  of  the  publication  of  the  second  writing. 
It  may  be  urged  that  but  for  the  publication  of  the  first  writing 
the  second  might  not,  or  perhaps  could  not,  have  come  into 
existence.  The  author  of  the  second  writing  could  not  have 
possessed  the  material  or  knowledge  requisite  for  its  production. 
The  same  objection  would  apply,  and  with  equal  force,  to  an 
oral  publication.  If  the  first  speaker  had  not  uttered  the  words 
the  second  speaker  could  not  have  repeated  them.  We  know 
such  an  objection  would  be  unavailing.  Again,  it  may  be 
urged  that  the  one  who  dictates  the  language  forming  the 
subject-matter  of  a  writing,  which  is  afterwards  published  by 
another,  is  responsible  for  such  publication,  either  solely  or  jointly 
with  the  publisher,  or  that  the  writing  first  published  is  equiv- 
alent to  a  dictation  of  the  language  of  the  second  writing  ;  but 
this  is  not  so ;  the  dictation,  to  incur  any  responsibility  for  a 
subsequent  publication  of  the  language  dictated,  must  be  made 
with  an  intent  or  a  request  that  the  language  so  dictated  shall 
be  subsequently  published  (§§  115,  118). 


PUBLISHER.  103 

§  118.  There  may  be  a  joint  publication  by  writing,  but,  for 
the  reasons  heretofore  stated  (§  113),  there  cannot  be  a  joint  oral 
publication.  If  two  or  more  utter  the  like  words,  either  simul- 
taneously or  separately,  it  is  not  a  joint  publication,  but  a  sev- 
eral publication  by  each,  for  which  each  must  be  sued  sepa- 
rately, and  for  which  they  cannot  be  sued  jointly.117  Within 
this  rule  husband  and  wife  are  considered  as  separate  individ- 
uals. If  husband  and  wife  utter  the  like  words,  either  simul- 
taneously or  separately,  there  are  two  publications — a  separate 
publication  by  each.  For  the  words  uttered  by  the  husband  he 
must  be  sued  alone  ;  for  the  words  uttered  by  the  wife,  the  hus- 
band and  wife  must  be  sued  together.118  Two  or  more  may 
agree  together  (conspire)  in  composing  a  set  of  words  which 
one  or  both  shall  speak ;  that  is  to  say,  two  or  more  may  con- 
spire to  injure  another  by  an  oral  publication  of  language ;  for 
this  the  remedy  would  be,  not  an  action  for  slander,  but  an 
action  for  a  conspiracy  to  defame.119 

§  119.  "Where  the  publication  is  the  joint  act  of  two  or 
more,  they  may  be  sued  jointly  or  separately ;  if  sued  sepa- 
rately, the  plaintiff  can  have  but  one  satisfaction,  but  may  elect 
de  melioribus  damhis.  Thus,  where  A.'  brought  an  action  of 
libel  against  B.,  who  pleaded  puis  darrein  continuance,  that  he 
was  a  partner  with  C.  in  the  printing  and  publishing  the  news- 
paper which  contained  the  libel,  and  that  A.  brought  a  previous 
action  against  C.  for  the  same  identical  publication,  and  recovered 
a  judgment  which  had  been  satisfied,  &c.     On  demurrer  this 


117  A  joint  action  cannot  be  maintained  against  two  or  more  persons  for  slan- 
der. ( Webb  v.  Cecil,  9  B.  Mon.  198 ;  Forsyth  v.  Edmiston,  2  Abb.  Pr.  R.  431  ;  5 
Duer,  653;  Chamberlaine  v.  Willmore,  Palm.  313;  1  Bulst.  15;  2  W.  Saund. 
117  a.) 

It  is  impossible  for  three  men  to  make  arbitrament  by  word  of  mouth,  because 
it  cannot  be  jointly  pronounced.     (Lawson's  Case,  Clayt.  17,  A  D.  1663.) 

118  There  must  be  separate  actions  or  words  spoken  by  a  husband  and  a  wife. 
(Penters  v.  England,  1  M'Cord,  14  ;  M alone  v.  Stillwell,  15  Abb.  Pr.  R.  425.) 

119  See  2  Hilliard  on  Torts,  444,  458  n.  ;  8  Barr.  237 ;  10  id.  369  ;  11  Met.  356. 


104  PUBLISHER. 

was  held  a  good  .plea,  and  that  the  plaintiff  could  have  but  one 
satisfaction,  but  might  elect  de  melioribus  damnis. 120 

§  120.  A  publication,  the  act  of  publishing,  must  be  upon 
some  occasion  (§  50),  and  must  be  voluntary  or  involuntary 
(§  67).  Liability  as  publisher  depends  upon  the  occasion  and 
upon  whether,  as  to  the  person  sought  to  be  charged,  the  publi- 
cation was  voluntary  or  involuntary,  and  generally  upon  the 
principles  to  which  reference  has  heretofore  been  made  (§§  50, 
67,  68,  70).  In  the  text  books  and  reports  much  is  said  on  the 
subject  of  privileged  publications,  employing  the  term  publica- 
tion to  mean  as  well  the  act  of  publishing  as  the  matter  pub- 
lished ;  and  these  privileged  publications  are  divided  into  such 
as  are  absolutely  privileged  and  such  as  are  conditionally  priv- 
ileged. Reserving  the  subject  of  privileged  publication  to  be 
hereafter  considered  at  length,  we  limit  ourself  here  to  stating 
that  all  involuntary  and  some  voluntary  publications  are  priv- 
ileged. 

§  121.  Where  a  closed  paper  is  given  to  an  employe  to  deliver 
to  another,  it  becomes  the  duty  of  the  employe  to  deliver  such 
paper  as  directed,  without  inspecting  its  contents,  and  in  making 
the  delivery  without  ascertaining  the  contents  of  the  paper,  he 
performs  a  duty  ;  and,  as  the  performance  of  a  duty  is  an  in- 
voluntary act  (§  39),  and  cannot  amount  to  a  wrong  (§  42),  if  it 
happen  that  the  paper  contained  defamatory  matter,  the  em- 
ploye'incurs  no  liability.  The  act  of  publishing  defamatory 
matter  was  as  to  him  involuntary.  He  did  not  know,  and  was 
not  under  any  obligation  to  know,  the  contents  of  the  paper 
carried  and  delivered  by  him.  He  could  have  known  the  con- 
tents of  the  paper  only  by  a  violation  of  his  duty ;  having 
simply  performed  his  duty,  no  liability  attached  to  him.m     But 


120  Thomas  v.  Rummy,  6  Johns.  26  ;  Brown  v.  Hirley,  5  Up.  Can.  Q.  B.  R.  (O.  S.) 
734  ;    Webb  v.  Cecil,  9  B.  Mon.  198. 

121  In  Nutt's  case,  as  reported  Barnard.  306,  it  is  said :  if  a  servant  carries  a 
libel  for  his  master,  he  certainly  is  liable  for  what  he  does,  though  he  cannot  so 
much  as  read  or  write.      Mr.  Starkie  (2  Starkie  on  Slander,  29,  note/),  refer- 


PUBLISHER.  105 

if,  in  such  a  case,  the  employe  does  in  fact  know  the  contents 
of  the  paper,  he  cannot  excuse  himself  by  saying  he  carried  and 
delivered  it  as  agent  or  employe  (§  67).  Ordinarily  it  would 
be  said  that  the  non-liability  of  the  employe,  in  the  instance 
above  put,  arose  from  the  absence  of  malice  on  his  part  in 
making  the  publication  ;  but  this  can  only  mean  that  he  had  a 
legal  excuse  for  performing  the  act,  namely,  that  the  act,  so 
far  as  it  was  wrongful,  was  as  to  him  involuntary.     This  is  the 


ring  to  this  dictum,  says :  "  It  is  impossible  not  to  dissent  from  this  doctrine,  so 
expressed,  without  the  qualification  added  that  the  servant  had  some  reason  to 
know  that  he  was  discharging  an  illegal  mission."  To  constitute  a  publication 
such  as  will  render  the  publisher  liable  to  an  action,  the  publication  must  be 
kqpwingly.  (Layton\.  Harris,  3  Harring.  406.)  Intentional.  ( Viele  v.  Gray,  10 
Abb.  Pr.  R.  12;  18  How.  Pr.  R.  567).  One  is  not  liable  for  a  publi- 
cation inadvertently.  (Rex  v.  Abingdon,  1  Esp.  Cas.  228.)  As  by  delivering  by 
mistake  a  paper  out  of  his  study.  (5  Mod.  167 ;  Holt  on  Libel,  290.)  Or  if  it  be 
stolen  from  him.  See  Weir  v.  Hoss,  6  Ala.  881  ;  Barrow  v.  Lewellin,  Hob.  62  . 
1  Hill.  Torts,  321,  note  7.  Reading  a  libel  in  the  presence  of  another  without 
knowing  it  before  to  be  a  libel,  with  or  without  malice,  does  not  amounl  to  a 
publication.  (4  Bac.  Abr.  458;  Holt  on  Libel,  290.)  But  if  he  who  has  either 
read  a  libel  himself  or  has  heard  it  read  by  another,  do  afterwards  maliciously 
read  or  repeat  any  part  of  it  in  the  presence  of  others,  or  lend  or  show  it  to 
another,  he  is  guilty  of  an  unlawful  publication  of  it.  (Hawk.  P.  C.  c.  73,  §  10 ; 
Holt  on  Libel,  291.)  Reading  a  libel  by  command  of  his  father  or  master  is 
not  an  actionable  publication — so  said  Comyn's  Dig.  tit.  Libel,  B.  2,  and  cited 
George  on  Libel,  162. 

If  a  man  deliver  by  mistake  a  libellous  paper  out  of  his  study,  he  would  prob- 
ably be  held  liable  civilly,  for  the  publication  was  by  his  carelessness.  (Mayne 
v.  Fletcher,  4  M.  &  Ry.  312.) 

"  The  mere  act  of  communicating  that  which  is  slanderous  will  not  subject  a 
party  even  to  civil  liability  without  some  degree  of  culpability  on  his  part.  If, 
for  instance,  a  servant  or  agent  were  in  the  ordinary  course  of  his  duty  to  deliver 
a  6ealed  libel,  without  any  knowledge  of  its  contents,  though  he  were  thus  the 
actual  instrument  of  publication,  yet  if  he  acted  but  as  the  agent  of  another, 
without  any  reason  for  suspecting  that  any  wrong  was  intended,  he  would  not 
subject  himself  to  any  civil,  still  less  to  any  criminal  responsibility."  (Starkie 
on  Libel,  226,  [227].) 

In  an  action  against  the  defendant  for  publishing  libels,  it  appearing  that  five 
packets,  addressed  to  individuals  and  enclosed  in  one  addressed  to  him,  had  been 
received  at  the  coach-office  where  he  was  porter,  and  he  delivered  them ;  held 
that  if  the  jury  found  that  he  did  so  in  the  course  of  his  business,  and  in  igno- 
rance of  the  contents,  he  was  not  liable  ;  but,  being  prima  facie  liable,  it  was  for 
him  to  show  such  ignorance.     (Day  v.  bream.  2  M.  &  Rob.  54.) 


106  PUBLISHER. 

true  ground  for  the  decisions  in  which  the  non-liability  is  said 
to  be  the  absence  of  malice.  Those  that  cannot  be  explained 
on  this  ground  were  either  erroneously  decided  or  decided  upon 
erroneous  grounds.  The  true  ground  for  the  decision  in  Smith 
v.  Ashleym  was  that  there  was  no  "  conscious  violation  "  of  law 
or  "  culpable  knowledge."  m  The  work  of  fiction  published  had 
nothing  on  its  face  to  indicate  that  it  reflected  upon  arfy*  indi- 
vidual or  his  affairs ;  the  publisher  did  not  know,  and  had  no 
means  of  'knowing,  that  it  reflected  on  any  individual  or  his 
affairs ;  in  so  far,  therefore,  as  it  did  reflect  upon  any  individ- 
ual, it  was  as  to  the  publisher  an  involuntary  act,  equally  as 
much  as  the  unconscious  delivery  by  an  employe  of  defamatory 
matter  by  the  direction  of  his  employer.  This  subject  will  be 
further  discussed  hereafter,  when  we  come  to  treat  of  defences. 

§  122.  Upon  the  principles  of  law  condensed  in  the  expres- 
sion respondeat  superior,  one  is  responsible  not  only  for  what 
he  does  or  omits  to  do  in  his  own  proper  person,  but  also  for 
all  that  his  agents  may  do  or  omit  to  do  in  and  about  his  busi- 
ness. Every  one  is  charged  with  the  duty  to  exercise  such  a 
vigilance  in  the  selection  of  agents,  animate  and  inanimate, 
as  are  competent  and  adequate  to  the  performance  of  the  busi- 
ness they  may  be  required  to  transact  and  the  ends  they  may 
be  designed  to  accomplish  ;  he  must  exercise  such  a  control 
over  them  that  in  the  transaction  of  his  business  they  neither 
do  or  omit  to  do  any  act  amounting  to  a  wrong.     He  cannot 


122  An  action  for  a  libel  cannot  be  maintained  against  the  publisher  of  a  news- 
paper, if  he  has  no  knowledge,  at  the  time  of  publication,  that  the  article  com- 
plained of  is  libellous.  Hence,  if  he  publishes  an  article  which  he  believes  to  be 
a  fictitious  narrative,  or  mere  fancy  sketch,  and  does  not  know  that  it  is  applicable 
to  any  one,  he  cannot  be  held  responsible,  although  it  was  intended  by  the  writer 
to  be  libellous,  and  to  apply  to  the  party  who  brings  the  action.  In  such  case, 
the  writer  only  is  answerable  to  the  party  libeled.  (Smith  v.  Ashley,  11  Met. 
367.) 

123  See  note  73,  ante.  "  He  who  shall  be  convicted  in  the  said  case  either 
ought  to  be  a  contriver  of  the  libel,  or  a  procurer  of  the  contriving  of  it,  or  a 
malicious  publisher  of  it,  knowing  it  to  be  a  libel."  (9  Co.  59,  Mo.  813;  George  on 
Libel,  107.) 


PUBLISHER.  107 

escape  this  liability  by  omitting  to  exercise  this  vigilance ;  for 
such  omission  is  itself  negligence.  It  is  upon  this  principle, 
and  not  upon  any  presumption  of  malice,  that  an  employer  or 
principal  is  held  responsible  for  the  act  of  his  servant  or  agent.124 

§  123.  The  proprietor  of  a  newspaper  is  responsible  for  all 
that  appears  in  its  columns,  although  the  publication  may  have 
been  made,  without  his  knowledge,  in  his  absence,  and  contrary 
to  his  orders.  His  liability  is  not  on  the  ground  of  his  being 
the  publisher,  nor  of  being  presumed  to  be  the  publisher,  but 
because  he  is  responsible  for  the  acts  of  the  actual  publisher.125 


121  Legal  criminality  is  merely  legal  responsibility,  and  may  exist  where  there 
is  no  moral  criminality  whatever.  (Holt  on  Libel,  53.)  Malice,  in  legal  under- 
standing, implies  no  more  than  wilfulness  (id.  55,  note  14  ante),  and  between 
negligence  and  wilfulness  there  is  no  difference  but  of  degree.  (Bramwell  B.  Man- 
gan  v.  Atterton,  1  Law  Reports,  Ex.  240.)  Negligence  embraces  acts  of  commis- 
sion as  well  as  of  omission,  and  diligence  implies  action  as  well  as  forbearance  to 
act.  ( Grant  v.  Mosely,  29  Ala.  302. )  But  the  only  principle  on  which  a  man  can 
be  rendered  liable  for  the  wrongful  acts  of  another,  is  that  such  a  relation  exists 
between  them  that  the  former,  whether  he  be  called  principal  or  master,  is  bound 
to  control  the  conduct  of  the  latter  whether  he  be  agent  or  servant.  The  maxim 
of  the  law  is  respondeat  superior.     (Blackwell  v.  WiswaU,  14  How.  Pr.  R.  258.1 

In  an  action  for  a  libel  contained  in  a  letter :  Proof  that  it  was  written  by 
defendant's  daughter,  who  was  authorized  to  make  out  his  bills  and  write  his 
general  letters  of  business,  is  not  sufficient,  unless  it  can  be  shown  that  such  libel 
was  written  with  the  knowledge  of  or  by  the  procurement  of  the  defendant. 
{Harding  v.  Greening,  1  Moore,  4Y7 ;  1  Holt  N.  P.  531;  8  Taunt.  42.)  Writing 
the  letter  was  not  within  the  scope  of  the  daughter's  authority  to  act  for  her 
father.  {Id.)  A  parent  is  not  liable  as  such  for  the  wrongful  acts  of  his  child. 
{Tifft  v.  Tifft,  4  Denio,  175,  and  see  Moony.  Towers,  8  Com.  B.  N.  S.  611.) 

If  an  attorney  introduces  slanderous  matter  into  the  pleadings,  without  the 
direction  of  his  client,  the  client  is  not  responsible.  {Hardin  v.  Cumstock,  ji  A. 
K.  Marsh,  480.) 

126  The  proprietor  of  a  newspaper  is  responsible  for  whatever  appears  in  its 
columns.  It  is  unnecessary  to  show  that  he  knew  of  the  publication,  or  author- 
ized it.  (Huffy.  Bennett,  4  Sand.  120.)  For  he  is  liable  even  though  the  publi- 
cation was  made  in  his  absence  and  without  his  knowledge  by  an  agent  to  whom 
he  had  given  express  instructions  to  publish  nothing  exceptionable,  personal,  or 
abusive,  which  might  be  brought  in  by  the  author  of  the  libel.  (Dunn  v.  Hall, 
1  Carter  (Ind.),  344  ;  1  Smith,  228.)  And  see  Curtis  v.  Mussey,  6  Gray  (Mass.), 
261. 


108  PUBLISHER. 

124.  The  liability  of  the  proprietor  of  a  newspaper  is  shared 
in  common  with  the  proprietor  of  a  printing  press,  a  printer, 
book  publisher,  and  bookseller.  The  proprietor  of  a  bookstore 
is  liable  for  the  contents  of  every  book  and  paper  sold  in  his 
store.126 


An  action  for  a  libel  lies  against  the  proprietor  of  a  gazette  edited  by  another, 
though  the  publication  was  made  without  the  knowledge  of  such  proprietor. 
(Andres  v.  Wells,  7  Johns.  269.) 

But  if  a  printing  press  and  newspaper  establishment  be  assigned  to  a  person 
merely  as  security  for  a  debt,  and  the  press  remain  in  the  sole  possession  and 
management  of  the  assignor,  the  ownership  of  the  person  holding  the  security  or 
lien  is  not  such  as  will  render  him  liable  to  an  action  as  proprietor.     {Id.) 

A  receiver  of  a  newspaper  establishment,  appointed  to  take  charge  thereof, 
and  continue  the  publication  of  the  newspaper,  would  be  responsible  for  any 
defamatory  matter  published  in  the  newspaper  while  the  same  was  under  his 
control.  (Marten  v.  Van  Schaick,  4  Paige,  479.)  A  receiver  was  appointed  to 
carry  on  the  publication  of  a  newspaper  in  Dayton  v.  Wilkes,  17  How.  Pr.  R.  510. 

The  editor  and  publisher  of  a  newspaper  is  answerable  in  law,  if  its  contents 
are  libellous,  unless  the  libellous  matter  was  inserted  by  some  one  without  his 
order  and  against  his  will.  (The  Commonwealth  v.  Kneeland,  Thacher's  Crim. 
Cas.  346.) 

Rex  v.  Gutch,  1  Moo.  &,  Mai.  433,  on  the  trial  of  defendant  for  publishing 
a  libel  in  a  newspaper  of  which  he  was  the  proprietor,  it  was  contended  on  his 
behalf  that  he  was  not  liable,  because  he  took  no  part  in  the  publication  of  the 
newspaper ;  but  he  was  held  liable  and  the  court  said  :  A  person  who  derives 
profit  from  and  who  furnishes  means  for  carrying  on  the  concern,  and  entrusts  the 
conduct  of  the  publication  to  one  whom  he  selects,  and  in  whom  he  confides, 
may  be  said  to  cause  to  be  published  what 'actually  appears;"  and  see  Rexx. 
Alexander,  1  Moo.  &  Mai.  437. 

126  "  It  is  not  material  whether  the  person  who  disperses  libels  is  acquainted 
with  their  contents  or  otherwise,  for  nothing  would  be  more  easy  than  to  publish 
the  most  virulent  papers  with  the  greatest  security,  if  the  concealing  the  purport 
of  them  from  an  illiterate  publisher  would  make  him  safe  in  dispersing  them. 
(2  StarMe  on  Slander,  30,  note  z.  ;  Moore,  627  ;  Wood's  Inst.  431 ;  Bac.  Abr.  tit. 
Libel,  458.)     See  note  121  ante. 

Nutt's  Case,  Fitzg.  47 ;  Barnard.  306  :  The  defendant  was  tried  for  publishing 
a  libel.  It  appeared  in  evidence  the  defendant  kept  a  pamphlet  shop,  and  that 
the  libel  was  sold  in  defendant's  shop,  by  her  servant,  for  her  account,  in  her 
absence,  and  that  she  did  not  know  the  contents  of  it,  nor  of  its  coming  in  or 
going  out.  This  was  held  to  be  a  publication  by  the  defendant,  but  a  jury  was 
withdrawn. 

Rex  v.  Dodd,  2  Sess.  Cas.  33 :  The  defendant  was  tried  for  publishing  a  libel. 
It  was  insisted  for  the  defendant  that  she  was  sick,  and  that  the  libel  was  taken 


CHAPTER  VII. 

CONSTKUCTION    OF   LANGUAGE. 

Actionable  quality  of  language  dependent  upon  its  construction. 
All  language  ambiguous  or  unambiguous.  Difficult  to 
determine  what  is  and  what  is  not  ambiguous.  Points  upon 
which  ambiguity  arise.  Causes  of  ambiguity.  Ambiguity, 
how  explained.  Different  effect  of  language  concerning  a 
person  and  of  kmguage  concerning  a  thing.  Materiality  of 
questions,  what  person  or  thing  affected,  and  whether  the 
person  is  affected  as  an  individual  merely,  or  .in  some 
acquired  capacity.  Principles  of  construction  ;  before  ver- 
dict— after  verdict.  Examples  of  construction.  Divisible 
matter. 

§  125.  Language  as  a  means  for  effecting  a  wrong  must  be 
either  such  as  is  actionable  or  such  as  is  not  actionable.  To 
which  of  these  divisions  any  particular  language  is  to  be  referred, 
depends  upon  the  construction  of  the  language  in  question. 
Anterior,  therefore,  to  an  inquiry  into  what  language  is  and 
what  language  is  not  actionable,  it  is  proper  to  consider  at  least 
the  principal  rules  by  which  alleged  defamatory  language  is 
construed. 

into  her  house  without  her  knowledge ;  this  was  held  no  excuse,  the  law  pre- 
sumed her  acquainted  with  what  her  servant  did. 

Rex  v.  Almon,  5  Burr.  2689,  the  liability  of  booksellers  was  much  discussed, 
and  the  court  expressed  an  opinion  that  the  sale  of  a  libel  in  a  bookseller's  shop 
w as  prima  facie  evidence  of  a  publication,  though  not  so  conclusive  but  that  it 
might  be  rebutted  by  circumstances.  It  is  said  (2  Starkie  on  Slander,  34) :  "  But 
the  defendant  may  rebut  the  presumption  by  evidence  that  the  libel  was  sold  con- 
trary to  his  orders,  or  clandestinely  ;  or  that  some  deceit  or  surprise  was  prac- 
ticed upon  him;  or  that  he  was  absent  under  circumstances  which  entirely  nega- 
tive any  presumption  of  privity  or  connivance."  And  reference  is  made  to  Rex 
v.  Almon,  supra,  and  to  Woodfalls'  Case,  where  the  defendant  was  imprisoned  at 
the  time  of  the  publication  by  his  servant,  and  without  his  privity.  In  Rex  v. 
Fis/ier,  1  Moo.  <fc  Mai.  433,  it  is  said  the  presumption  arising  from  proprietorship 
of  a  newspaper  may  be  rebutted,  and  an  exemption  established.      If  the   publi- 


110  CONSTRUCTION   OF  LANGUAGE. 

§  126.  Language  may  be  ambiguous  or  unambiguous.127  It 
is  not  easy  in  every  case  to  determine  what  is  ambiguous  and 
what  is  unambiguous  language.  Language  may  be  unambigu- 
ous on  its  face,  which,  by  reason  of  some  circumstances  con-* 
nected  with  it,  is  in  fact  ambiguous.  This  is  always  the  case 
with  language  used  ironically.  When  language  is  unambiguous, 
on  its  face  it  must  be  construed  as  unambiguous,  unless  its 
ambiguity  be  shown  ;  and  on  the  one  who  asserts  the  ambiguity 
of  language  unambiguous  on  its  face,  is  the  burden  of  estab- 
lishing the  ambiguity.128 

cation  is  made  without  the  consent  of  the  writer,  the  offence  is  not  complete  as 
to  him.  ( Weir  v.  Hoss,  6  Ala.  881.  See  Holt  on  Libel,  294.)  As  if  the  writing 
be  stolen  from  him.     {Mayne  v.  Fletcher,  9  B.  &  C.  382.) 

In  Chubb  v.  Flanaghan,  6  Car.  <fc  P.  431,  it  was  held  that  if  a  publication 
consists  in  merely  selling  a  few  copies  of  a  periodical  in  which  the  libel  was 
contained  among  the  articles,  it  was  a  question  for  the  jury  whether  the  defendant 
knew  what  he  was  selling. 

m  "  Words  or  signs  may  be  divided  into  three  classes :  (1)  those  which  bear 
an  obvious  and  precise  meaning  on  the  face  of  them;  as  if  A.  say  to  B.,  you 
murdered  C. ;  (2)  those  which  on  the  face  of  them  are  of  dubious  import,  and  are 
capable  either  of  a  criminal  or  innocent  meaning ;  as  if  A.  says  to  B.,  you  were 
the  death  of  C. ;  (3)  those  which  are  prima  facie  and  abstractedly  innocent,  and 
which  derive  their  offensive  quality  from  some  collateral  or  extrinsic  circum- 
stance ;  as  if  A.  says  to  B.,  you  did  not  murder  C„  which  words,  from  the  iron- 
ical manner  of  speaking  them,  may  convey  to  the  hearers  as  unequivocal  a 
charge  of  murder  as  the  most  direct  imputation."     (1  Starkie  on  Slander,  46.) 

128  «  where  the  words  of  themselves  impute  a  larceny,  and  are  unaccompanied 
by  an  explanation  showing  the  hearers  that  they  were  not  so  intended,  the  defend- 
ant must  show  that  they  referred  to  a  transaction  that  was  not  larceny,  and  were 
so  understood  by  all  who  heard  them.  And  where  the  plaintiff  had  taken  wood 
through  mistake,  and  the  defendant,  knowing  the  excuse  for  taking  it,  persists  in 
charging  him  with  stealing,  in  reference  to  such  taking,  he  cannot  fall  back  and 
rest  upon  the  plaintiff's  innocence."     {Phillips  v.  Barber,  1  Wend.  439.) 

"  As  doubtful  or  apparently  innocent  words  may  by  circumstances  be  shown 
to  be  actionable,  so  may  words  apparently  actionable  be  explained  by  circum- 
stances to  have  been  intended  and  understood  in  an  innocent  sense.  Thus, 
though  the  defendant  should  say,  Thou  art  a  murtherer,  the  words  would  not  be 
actionable  if  the  defendant  could  make  it  appear  that  he  was  conversing  with  the 
plaintiff  concerning  unlawful  hunting,  when  the  plaintiff  confessed  that  he  killed 
several  hares  with  certain  engines,  upon  which  the  defendant  said,  Thou  art  a 
murtherer,  meaning  a  murtherer  of  hares  so  killed.  4  Co.  13."  (1  Starkie  on 
Slander,  98.) 


CONSTRUCTION  OF   LANGUAGE.  Ill 

§  127.  When  language  is  ambiguous,  the  ambiguity  may  be 
either  (1)  whether  the  language  concerns  a  person  or  a  thing, 
or  (2)  what  person  or  what  thing  it  concerns,  or  (3)  if  it  con- 
cerns a  person  does  it  concern  him  as  an  individual  merely  or 
in  some  acquired  capacity,  as  in  an  office,  trade  or  profession  ; 
(4)  what  is  the  import  or  signification  of  the  language,  and  (5) 
is  the  charge  or  matter  divisible  or  indivisible. 

§  128.  The  ambiguity  may  be  patent  or  latent,  that  is  to 
say  the  ambiguity  may  be  inherent  in  the  language  and  appa- 
rent upon  its  face,  or  the  ambiguity  may  arise  by  reason  of  the 
language  in  question  being  connected  with  some  other  language 
or  event  in  such  a  manner  as  that  its  accustomed  signification 
is  affected  and  changed  by  such  other  language  or  event. 

§  129.  The  ambiguity  of  language  unambiguous  upon  its 
face  is  shown,  and  the  ambiguity  of  language  in  every  case  is 
explained,  by  introducing  the  other  language  or  event  which 
exhibits  or  which  explains  the  ambiguity,  and  by  alleging  the 
supposed  true  meaning  of  the  language  in  question.  The  man- 
ner by  which  ambiguity  is  shown  and  explained  is  by  allega- 
tions in  pleading,  termed  averments,  colloquia,  and  innuendoes, 
the  nature  and  offices  of  which  several  allegations  will  be  con- 
sidered under  the  head  of  Pleading.129 

129  An  averment  is  to  ascertain  that  to  the  court  which  is  generally  or  doubtfully 
expressed,  so  that  the  court  may  not  be  perplexed  of  whom,  or  of  what,  it  [the 
language]  ought  to  be  understood,  and  to  add  matter  to  the  plea  to  make  doubtful 
things  clear.  A  colloquium  serves  to  show  that  the  words  were  spoken  in  refer- 
ence to  the  matter  of  the  averment.  An  innuendo  is  explanatory  of  the  subject- 
matter  sufficiently  explained  before,  and  it  is  explanatory  of  such  matter  only ; 
for  it  cannot  extend  the  sense  of  the  words  beyond  their  own  meaning  unless 
something  is  put  upon  the  record  for  it  to  explain.  (  Van  Vechten  v.  Hopkins,  5 
Johns.  220.) 

It  seems  that  in  some  instances  where  the  language  is  unambiguous  on  its 
face  the  plaintifF  will  not  be  allowed  to  treat  it  as  ambiguous  and  give  it  a  mean- 
ing different  from  that  it  ordinarily  bears.  Thus  the  words  spoken  of  a  dyer 
were  "  Thou  art  not  worth  a  groat,"  the  plaintiff  alleged  that  at  E.,  where  the 
words  were  spoken,  they  were  all  one  as  calling  him  Bankrupt.  The  court  held 
the  averment  idle,  because  the  words  in  themselves  imply  a  plain  and  intelligible 
sense.  (Meade  v.  Axe,  Mar.  15,  pi.  37;  and  see  McChcskey  v; Cromwell,  1  Kernan, 
601.) 


112  CONSTRUCTION  OF   LANGUAGE. 

§  130.  Whether  the  language  concerns  a  person  or  a  thing, 
i.  e.  the  affairs  of  a  person  (§§  25,  27,  28),  is  material  in  this 
respect :  that  language  when  it  concerns  a  person,  and  is  dis- 
commendatory,  is  always,  in  the  absence  of  any  evidence  to  the 
contrary,  regarded  as  uncalled  for,  as  published  without  any 
lawful  excuse,  and  as  not  to  be  believed  or  considered  as  true 
unless  its  truth  be  established ;  or,  as  the  phrase  is,  such  lan- 
guage is  presumed  to  be  malicious  and  false.  But  as  to  language 
concerning  a  thing  no  such  presumption  is  indulged ;  and  upon 
those  who  allege  language  concerning  a  thing  to  be  false  and 
malicious  is  the  burden  of  establishing  those  conclusions  by 
other  evidence  than  that  afforded  by  the  mere  publication  of 
the  language.  And  besides,  to  give  a  cause  of  action  for  lan- 
guage concerning  a  thing,  special  damage  must  in  all  cases  be 
alleged  and  proved.130 

While  a  distinction  has  been  actually  maintained  between 
language  concerning  a  person  and  language  concerning  a  thing, 
the  essential  grounds  of  the  distinctions  seems  not  to  have  been 
clearly,  nor  indeed  rightly,  apprehended.  That  branch  of  the 
law  of  libel  known  as  "  Slander  of  Title,"  has  been  regarded 
as  something  distinct  from  Slander  and  Libel,  properly  so 
called,  whereas  in  reality  slander  of  title  is  but  a  portion  of 
that  division  of  the  law  relating  to  wrongs  by  language  which 
includes  language  concerning  things.131     The  rules  relating  to 


130  See  Swan  v.  Tappan,  5  Cush.  104;  Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ; 
8  Scott,  5*71 ;  Evans  v.  Harlow,  5  Q.  B.  624 ;  Kendall  v.  Stone,  1  Selden,  14,  rever- 
sing S.  C.  2  Sand.  269 ;  Hargrave  v.  Le  Breton,  4  Burr.  2422 ;  Smith  v.  Spooner, 
3  Taunt.  246;  Bailey  v.  Dean,  5  Barb.  297;  Linden  v.  Graham,  1  Duer,  6*70; 
Tobias  v.  Harland,  4  Wend.  537 ;  McDaniel  v.  Baca,  2  Cal.  326. 

131  Debated  if  slander  of  title  within  statute  21  Jac.  1,  ch.  16,  actions  on  the 
case  for  slander,  held  by  three  judges  against  one,  that  it  was  not ;  "  that  action 
in  the  case  for  slander  "  referred  to  the  person  of  a  man  and  not  to  the  title  of 
lands.  For  this  is  not  properly  a  slander  but  a  cause  of  damage.  {Lowe  v. 
Hariuood,  Cro.  Car.  140.)  "An  action  for  slander  of  title  is  not  properly  an 
action  for  words  spoken  or  libel  written  and  published,  but  an  action  on  the  case 
for  special  damage  sustained  by  reason  of  the  speaking  or  publication  of  the 
slander  of  the  plaintiff's  title.  This  action  is  ranged  under  that  division  of  actions 
in  the  Digests  and  other  writers  on  the  text  law,  and  is  so  held  by  the  courts  at 


CONSTRUCTION  OF  LANGUAGE.  113 

slander  of  title  apply  to  all  language  concerning  things,  but 
where  the  language  concerns  both  a  person  and  a  thing,  it  is 
governed  by  the  rules  which  relate  to  language  concerning  the 
person.  The  question  whether  the  language  concerns  a  person 
or  a  thing  arises  in  cases  of  alleged  privileged  publications  in 
the  form  of  criticisms  on  books,  works  of  art,  or  places  of 
public  entertainment.  It  must  be  determined  in  those  cases 
whether  in  point  of  fact  the  language  of  the  criticism  was  con- 
cerning the  thing,  the  book,  the  work  of  art,  or  the  proprietor 
of  the  place ;  and  according  to  the  decision  of  that  question 
will  the  language  be,  or  not  be,  actionable.  We  shall  advert  to 
this  hereafter,  in  treating  of  defences. 

§  131.  What  person  or  what  thing  the  language  concerns  is 
material ;  as  upon  the  answer  to  that  question  depends  whether 
the  party  complaining  has,  or  has  not,  any  right  to  redress.  Of 
course  unless  the  language  concerns  either  the  person  or  the 
affairs  of  the  party  complaining,  no  wrong  can  have  been  done 
him  of  which  he  can  rightfully  complain.132 

the  present  day.  Malachj  v.  Soper,  3  Bing.  N.  C.  371;  3  Scott,  723."  (Heard  on 
Libel,  §  59.)  "  An  action  of  slander  of  title  is  a  sort  of  metaphorical  expression." 
(Maule,  J.,  Pater  v.  Baker,  3  C.  B.  831.)  "The  cause  of  action  is  denominated 
slander  of  title  by  a  figure  of  speech,  in  which  the  title  to  land  is  personified  and 
made  subject  to  many  of  the  rules  applicable  to  personal  slander,  when  the  words 
in  themselves  are  not  actionable."  (Gardiner,  J.,  Kendall  v.  Stone,  1  Selden,  14.) 
132  In  action  for  scandalous  words  it  is  requisite  that  "  the  person  scandalized 
be  certain."  {James  v.  Rutledge,  4  Rep.  17  b.)  "  No  writing  whatever  is  to  be 
esteemed  a  libel  unless  it  reflects  upon  some  particular  person."  (Hawk,  P.  G,  c. 
73,  §  9.)  After  quoting  the  foregoing  sentence,  Holt  (Holt  on  Libel,  246)  adds  : 
"  This  is  unquestionably  true,  as  it  relates  to  the  action  on  the  case  for  slander, 
in  which  the  party  complaining  must  show  himself  to  be  meant  by  the  libel." 
(Holt  on  Libel,  247;  Harvey  v.  Coffin,  5  Blackford,  566.)  It  is  not  material 
whether  the  person  is  described  nominally  or  indirectly,  provided  his  identity 
be  ascertained.  (Sumner  v.  Buel,  12  Johnson,  475.)  Identity  is  presumed  from 
identity  of  name.  (Jackson  v.  Goes,  13  Johnson,  518;  Jackson  v.  Kin g,  5  Cow. 
237 ;  Jackson  v.  Cody,  9  Cow.  140 ;  Hamber  v.  Roberts,  18  Law  Jour.  R.  (N.  S.)  250, 
C.  P.;  Hatcher  v.  Rochelcau,  18  N.  Y.,  86;  but  see  Jackson  v.  Christman,  4  Wend. 
277.)  Where  the  language  is  not  applicable  to  the  plaintiff  (does  not  concern  the 
person)  no  averment  or  innuendo  can  make  it  so.  (Solomon  v.  Lawson,  8  Q.  B. 
823 ;  Ingram  v.  Lawson,  6  Bing.  N.  C.  212;  8  Scott,  571 ;  Dottarer  v.  Bmbey,  4  liar. 
208;  Swanv.  Tappan,  5  Cush.  104;  Vin.  Abr.,  Act.  for  Words  ,H.  b.  12,  13.)  Where 
the  language  is  applicable  to  the  plaintiff,  although  not  so  upon  its  face  to  maintain 


114  CONSTRUCTION  OF   LANGUAGE. 

§  132.  When  the  language  concerns  a  person,  it  is  material 
further  to  inquire  whether  it  concerns  him  as  an  individual 
merely,  or  in  some  acquired  capacity,  as  in  an  office,  trade  or 
profession,  because  language  which  would  not  be  actionable  if 
it  concerned  one  as  an  individual  merely,  may  be  actionable  if 
it  concerns  him  in  his  office,  trade,  or  profession. 

an  action  therefor  he  must  by  averment  introduce  such  facts  as  make  it  apparent 
that  persons  who  knew  him  would,  on  hearing  or  reading  such  language,  perceive 
its  application  to  him.  {Miller  v.  Maxwell,  16  Wend.  9.)  He  cannot  show  the  ap- 
plication of  the  language  to  himself  by  an  innuendo  alone.  ( Wilson  v.  Hamilton, 
9  Rich.  Law  (So.  Car.),  382 ;  Maxwell  v.  Allison,  11  S.  &  R.  343 ;  Turner  v.  Merry- 
weather,  7  C.  B.  251 ;  Tyler  v.  TilloUon,  2  Hill,  507.)  Thus  it  is  not  sufficient  to 
allege  that  the  defendant  said,  "  R.  saw  a  young  man  (meaning  the  plaintiff)  ravish- 
ing a  cow."  {Harper  v.  Delph,  3  Ind.  225. )  Or,  W.  or  somebody  altered  the  indorse- 
ment on  a  note.  {Ingalls  v.  Allen,  Breeze,  233.)  I  know  of  but  one  man  who  owes 
me  enmity  enough  to  do  such  a  thing,  and  you  know  whom  I  mean.  {Robinson  v- 
Drummond,  24  Ala.  174.)  A.  was  supervisor  of  an  election,  at  which  there  was 
false  swearing.  {Lewis  v.  Soule,  3  Mich.  514.)  And  held  that  the  postmaster  of  J. 
could  not  maintain  an  action  for  words  spoken  of  a  missing  letter  containing  the 
resignation  of  one  M. :  "  I  do  not  think  M.'s  resignation  has  gone  to  Washington. 
I  have  no  doubt  it  was  embezzled  at  J."  ( Taylor  v.  Kneeland,  1  Doug.  67.)  For 
the  words,  "  All  the  bravery  you  (A.)  ever  showed  was,  sleeping  with  your  sis- 
ters," held  that  the  sisters  of  A.  could  not  sue.  {Mallison  v.  Sutton,  1  Smith, 
364.)  For  calling  W.  a  bastard,  the  mother  of  W.  could  not  sue  for  the  imputa- 
tion upon  her  without  proper  averments  connecting  the  allegation  with  her. 
{Maxwell  v.  Allison,  11  S.  &  R.  343.)  An  action  may  be  supported  for  language 
in  which  the  plaintiff  is  described  directly  or  indirectly,  though  his  name  is  not 
given.  Thus,  with  proper  averments,  one  may  bring  an  action  for  the  words  con- 
cerning on  their  face  "his  friend"  {Clark  v.  Creitzburgh,  4  M'Cord,  491);  or 
the  "surgeon  of  whiskey  memory"  {Miller  v.  Maxwell,  16  Wend.  9);  or  the 
"  man  [at  the  sign  of  the  Bible"  {Steele  v.  Southwick,  9  Johns.  214);  or,  O.  B. 
{(7-Brienv.  Clements,  16  M.  &  W.  159);  or  "desperate  adventurers"  {Wakley  v. 
Healey,  18  Law  Jour.  241,  C.  P.).  "  The  writer  in  the  Register  who  was  deprived 
of  a  twopenny  justice-ship  for  malpractice  in  packing  a  jury "  {Mix  v.  Wood- 
ward, 12  Conn.  262);  and  see  "One  who  edits  the  Times"  {Tyler v.  Tillotson,  2 
Hill,  507);  "  Filly  Horse"  {Weir  v.  Hoss,  6  Ala.  881).  Where  B.  had  been  ac- 
cused of  stealing  a  tray  of  biscuits,  and  A.  said  in  the  hearing  of  B.  and  of  other 
persons,  that  if  they  did  not  look  out  he  would  make  the  tray  of  biscuits  roar, 
held,  that  with  proper  averments  connecting  B.  with  this  language  of  A.,  B. 
might  maintain  an  action  against  A.  {Briggs  v.  Byrd,  11  Ired.  353.)  The  words 
"  I  am  a  true  subject,  and  thou  servest  no  true  subject,"  spoken  to  the  servant  of 
I.  S.,  held  sufficient  to  give  a  right  of  action  to  I.  S.  ( Vin.  Abr.,  Act.  for  Words, 
C.  b.  1.)  And  so  of  the  words,  "Thy  master,  Mr.  Browne,  hath  robbed  me." 
{Id.  3.)  If  A.  says  to  B.,  One  of  us  two  is  perjured,  and  B.  says  to  A.,  It  is  not 
I,  and  A.  says  again,  It  is  not  I,  B.  may  maintain  an  action.     {Id.  4.)      For 


CONSTRUCTION  OF  LANGUAGE.  115 

§  133.  The  different  effect  which  in  certain  cases  is  attributed 
to  written  as  distinguished  frotn  oral  language,  does  not  extend 
to  the  construction  of  language  with  a  view  to  determine  its 
proper  meaning.  For  the  purpose  of  its  construction,  language 
is  to  be  regarded  not  merely  in  reference  to  the  words  employed, 

the  words  "  Thy  son  hath  robbed  "  me,  the  son  of  the  person  spoken  to  may 
maintain  an  action  if  he  be  the  only  son  ;  and  if  one  say  to  a  son,  thy  father,  or 
to  a  wife,  thy  husband  hath  robbed  me,  the  father  or  the  husband  may  have  an 
action.  {Id.  6;  H.  b;  K.  b;  and  see  Ralph  v.  Davye,  Sty.  150;  Brent  v.  Ingram,  Cro. 
Eliz.  36 ;  Andersons.  Stewart,  8  U.  C.  Q.  B.  R.  243.)     For  the  words  "Your  boys 
stole  my  corn,"  "  your  children  are  thieves,"  either  of  the  sons  in  the  one  case, 
and  of  the  children  in  the  other,  may  sue.   (Maybce  v.  Fisk,  42  Barb.  326 ;  Gidney  v. 
Blake,  1  Uohns.  54.)  And  for  the  words,  A.  or  B.  killed  T.  S.,  either  A.  or  B.  may  sue. 
{Falkner  v.  Cooper,  Carth.  56.)    Where  the  language  affects  a  particular  class  of 
men,  as  for  instance  men  of  the  gown,  it  gives  no  right  of  action  to  an  individual 
of  that  class.     {Ryckman  y.  Belavan,  25  Wend.  186;  rev'g  White  v.  Delavan,  17 
Wend.  49.)    And  see  Ellis  v.  Kimball,  16  Peck,  132;    Le  Faun  v.  Malcolmson,  1 
Ho.  of  Lords  Cas.  637.      Thus  where  Ensign  Sumner  brought  an  action  against 
Buel  for  defamatory  matter  published  by  Buel,  reflecting  on  the  character  of 
the  officers  generally  of  the  regiment  to  which  the  plaintiff  belonged,  it  was 
held  by  a  majority  of  the  court  that  the  action  could  not  be  maintained,  and  that 
the  appropriate  remedy  in  such  a  case  was  indictment.   {Sumner  v.  Buel,  12  Johns. 
475.)    An  information  may  issue  in  such  a  case.     See  Rex  v.  Baxter,  12  Mod.  139  ; 
L'd  Raym.  879  ;  Rex  v.  Osborne,  2  Barnard.  138 ;  Kel.  230  PI.  183  ;  Rex  v.  Griffin, 
Rep.  temp.  Hardwicke,   39 ;  Rex  v.  Home,  Cowper,  672 ;  Holt  on  Libel,  249  ; 
Cooke  on  Defamation,  215.     Where  the  defamatory  matter  is  concerning  a  class, 
as  an  unincorporated  fire  company,  the  members  of  the  class  cannot  maintain  a 
joint  action.     {GiraudY.  Beach,   3  E.  D.  Smith,  337.)    A  man  may  be  libelled, 
not  by  name,  or  any  specific  description  of  himself,  but  under  some  such  descrip- 
tion of  persons  as  includes  him    with  others — as  all  the  brewers  in  a  desig- 
nated portion  of  a  city.     {Ryckman  v.  Belavan,  25  Wend.  186;  rev'g  White  v. 
Belavan,  17  Wend.  49  ;  and  see  Be  Faun  v.  Malcolmson,  1  Ho.  of  Lords  Cas.  637.) 
And  "  a  scandal  published  of  three  or  four  or  any  one  or  two  of  them  is  pun- 
ishable at  the  complaint  of  one  or  more  or  all  of  them."     (Holt  on  Libel,  247 ; 
Harrison  v.  Bevington,  8  CAP.  807.)    Thus  where  there   was   an  indictment 
against  sixteen  persons  for  conspiracy,  and  I.  S.  said  the  defendants  were  those 
who  helped  to  murder  W.  N.,  held,  either  of  the  sixteen  defendants  might  have 
his  action  (Vin.  Abr.,  Act.  for  Words,  C.  b.  5) ;  and  see  Forbes  v.  Johnson,  11  B. 
Monr.  48;   Chandler  v.  Hollow ay,  4  Port.   17;    and    see  post,  Parties.      Where 
the  intention  to  apply  defamatory  remarks  to  the  prosecutor  is  rendered  doubt- 
ful and  ambiguous  by  the  defendant  having  left  blanks  for  names,  or  from  his 
having  given  merely  the  initials  or  introduced  fictitious  names,  it  is  always 
a  question  for  the  opinion  and  judgment  of  the  jury  whether  the  prosecutor 
was    the    party  really   aimed   at.      (2  Starkie  on  Slander,  32;     The  State  v. 
Jeandell,  32  Penn.  State  Rep.  475;  Mix  v.  Woodward,  12  Conn.  262;  Ryckman  v. 


116  CONSTRUCTION  OF  LANGUAGE. 

but  according  to  the  sense  or  meaning  which,  all  the  circum- 
stances of  its  publication  considered,  the  language  may  be 
fairly  presumed  to  have  conveyed  to  those  to  whom  it  was  pub- 
lished. The  language  is  always  to  be  regarded  with  reference 
to  what  has  been  its  effect,  actual  or  presumed,  and  the  sense  is 
to  be  arrived  at  with  the  help  of  the  cause  and  occasion  of  its 
publication.133  The  court  or  the  jury  is  to  place  itself  in  the 
situation  of  the  hearer  or  reader,  and  determine  the  sense  or 
meaning  of  the  language  in  question  according  to  its  natural 
and  popular  construction.134 

Delavan,  25  Wend.  186.)  For  this  purpose  the  judgment  and  opinion  of  wit- 
nesses who,  from  their  knowledge  of  the  parties  and  the  circumstances,  are  liable 
to  form  a  conclusion  as  to  the  defendant's  intention  and  application  of  the  libel, 
is  evidence  for  the  information  of  the  jury.  (2  Starkie  on  Slander,  321),  and  he 
adds  in  a  note ;  Lord  Eilenborough  held  that  the  declarations  of  spectators 
while  they  looked  at  a  libelous  picture,  publicly  exhibited  in  an  exhibition-room, 
was  evidence  to  show  that  the  figures  portrayed  were  meant  to  represent  the 
parties  alleged  to  have  been  libeled.  (Da  Bost  v.  Beresford,  2  Camp.  512) ;  and 
see  Starkie  on  Evidence,  part  iv.,  p.  861.  In  New  York  a  witness  is  not  allowed 
to  state  his  conclusion  from  the  facts  as  to  the  intention  of  the  defendant  to  apply 
the  words  or  libel  to  the  party  or  circumstances  as  alleged.  ( Van  Vechten  v. 
Hopkins,  5  Johns.  211 ;  Gibson  v.  Williams,  4  Wend.  320.)  In  some  other  States 
witnesses  have  been  allowed  to  testify  as  to  the  sense  in  which  they  understood 
the  words,  and  the  application  of  the  words  to  the  plaintiff.  (Morgan  v.  Living- 
ston, 2  Rich.  573  ;  Miller  v.  Butler,  6  Cush.  71;  Leonard  v.  AVen,  11  Cush.  241 ; 
McLaughlin  v.  Russell,  17  Ohio,  475  ;  Goodrich  v.  Davis,  11  Met.  473  ;  Goodrich 
v.  Stone,  11  Met.  486;  Allensworth  v.  Coleman,  5  Dana,  315;  White  v.  Sayward, 
.33  Maine,  322 ;  Mix  v.  Woodward,  12  Conn.  262;  Smart  v.  Blanchard,  42  N.  H. 
137;  Smawley  v.  Stark,  9  Ind.  386;  Tomjokins  v.  Wisener,  1  Sneed,  458;  Com- 
monwealth v.  Buckingham,  Thacher's  Crim.  Cas.  29.)  But  the  rule  adopted  in 
New  York  appears  to  have  been  followed  in  Snellv.  Snow,  13  Met.  278  ;  Rangier 
v.  Hummell,  37  Penn.  St.  Rep.  130 ;  Briggs  v.  Byrd,  11  Ired.  353. 

33  In  actions  for  words  we  are  to  consider  the  words  themselves  and  the  causa 
dicendi,  for  sometimes  in  the  first  case  they  will  bear  an  action,  and  yet  when  the 
causa  dice7idi  is  considered  they  will  not.  (Barclay,  J.,  Mar.  20,  p.  45.)  "In 
case  of  slander  by  words,  the  sense  of  the  words  ought  to  be  taken,  and 
the  sense  of  them  appears  by  the  cause  and  occasion  of  speaking  them ;  for 
sensus  verborum  ex  causd  dicendi  accipiendus  est."  (4  Co.  18.)  The  construction 
which  it  behooves  a  court  of  justice  to  put  on  a  publication  which  is  alleged  to 
be  libelous,  is  to  be  derived  as  well  from  the  expressions  used,  as  from  the  whole 
scope  and  apparent  object  of  the  writer.  (Van  Buren,  Senator,  Spencer  v.  South- 
wick,  11  Johns.  592.) 

134  «  Words  are  now  construed  by  courts  as  they  always  ought  to  have  been, 
in  the  plain  and  popular  sense  in  which  the  rest  of  the  world  naturally  under- 


CONSTRUCTION  OF  LANGUAGE.  *  117 

It  is  said  that  words  to  confer  a  cause  of  action  for  slander 
or  libel  ought  to  be  in  the  affirmative,135  and  that  actions  for 
slander  do  not  lie  upon  inferences,186  but  negative  or  ironical 
language  may  be  shown  to  be  in  fact  affirmative,  and  if  so 
found,  has  the  like  effect  as  affirmative  words.187     "  The  law 

stand  them."  (Roberts  v.  Camden,  9  East,  93.)  "  It  is  quite  clear,  from  all  the 
modeim  authorities,  that  a  court  must  read  these  words  in  the  sense  in  which 
ordinary  persons,  or  in  which  we  ourselves,  out  of  court,  reading  this  paragraph, 
would  understand  them."  (Tenterden,  C.  J.,  Harvey  v.  French,  1  Cr.  &  M.  11.) 
We  cannot  pervert  the  words  and  alter  the  ordinary  construction  of  them.  (Bon- 
yonx.  Trotter,  Sty.  231.)  The  words  must  be  understood  by  the  court  in  the  same 
sense  in  which  the  rest  of  mankind  would  ordinarily  understand  them.  (WooU 
noth  v.  Meadows,  5  East,  463  ;  Spencer  v.  Southwick,  11  Johns.  579.)  We  "ought 
to  expound  words  according  to  their  general  signification"  (Pratt,  C.  J.,  Button 
v.  Hey  ward,  8  Mod.  24),  or  acceptation  (Fallenstein  v.  Boothe,  13  Mis.  427 ;  Off- 
den  v.  Riley,  2  Green,  186);  their  popular  sense  (Duncan  v.  Brown,  15  B.  Monr. 
186  ;  Hancock  v.  Stephens,  11  Humph.  507) ;  their  most  obvious  meaning  (Hogg  v. 
Wilson,  1  N.  &  M.  216),  or  common  import  (ThirnXan  v.  Mathews,  1  Stew.  384; 
Hogg  v.  Dorrah,  2  Port.  212),  as  understood  by  the  hearer  (Dorland  v.  Patterson, 
23  Wend.  422;  Buttcrfield  v .  Buffum,  9  N.  Hamp.  156;  McG-owan  v.  Manifee,  1 
Monr.  314);  and  according  to  the  ideas  they  are  calculated  to  convey  (Dcmarest 
v.  Haring,  6  Cow.  76 ;  Truman  v.  Taylor,  4  Iowa,  424) ;  according  to  their  natural 
meaning  and  common  acceptation  ( Wright  v.  Paige,  36  Barb.  438).  The  jury  are 
to  be  guided  in  forming  their  opinion  [on  the  meaning  of  the  alleged  defamatory 
matter]  by  the  impression  which  the  words  or  signs  used  were  calculated  to  make 
on  the  minds  of  those  who  heard  or  saw  them,  as  collected  from  the  whole  of  the 
circumstances.  (1  Starkie  on  Slander,  60.)  Words  are  to  be  taken  in  that  sense 
in  which  they  are  generally  understood,  and  when  that  puts  upon  them  a  guilty 
sense  they  are  actionable.  (Pike  v.  Van  Wormer,  6  How.  Pr.  R.  99;  DiasY. 
Short,  16  id.  322;  Walrath  v.  Nellis,  17  id.  72;  Hughley  v.  Hvghley,  2  Bailey, 
592  ;  Tuttle  v.  Bishop,  30  Conn.  80.)  The  words  are  to  be  taken  in  their  natural 
meaning  and  according  to  common  acceptation  (Carroll  v.  White,  33  Barb.  618), 
and  the  vulgar  intendment  of  the  bystanders.     (Somers  v.  House,  Holt,  39.) 

135  Weblin  v.  Meyer,  Yelv.  153. 

138  Jenk.'302  PI.  72.  To  sustain  an  action  plaintiff  must  show  (1)  that  the 
words  used  either  "  of  themselves  or  by  reference  to  circumstances,  are  capable 
of  the  offensive  moaning  attributed  to  them;  (2)  that  the  defendant  did,  in  fact, 
use  them  in  that  sense."  (1  Starkie  on  Slander,  44.)  "  Words  imputing  crime 
must  be  precise."     (Id.)    See  note  163,  post. 

137  Words  calculated  to  induce  the  hearers  to  suspect  that  the  plaintiff  was 
guilty  of  the  crime  alleged,  are  actionable.  (Drummond  v.  Leslie,  5  Blackf.  453.) 
It  is  not  necessary  that  the  words  in  terms  should  charge  a  crime.  If  such  is  the 
necessary  inference,  taking  the  words  altogether,  and  in  their  popular  meaning, 
they  are  actionable.     (Morgan  v.  Livingston,  2  Rich.  573 ;    Cass  v.  Anderson,  33 


118  CONSTRUCTION  OF  LANGUAGE. 

cannot  be  evaded  by  any  of  the  artful  and  disguised  modes  in 
which  men  attempt  to  conceal  libellous  or  slanderous  mean- 
ings;"138   and  the  fact  of  language  being   ungrammatical,  or 


Verm.  182 ;  Colman  v.  Godwin,  3  Doug.  90 ;  2  B.  &  C.  285 ;  Commonwealth  v. 
Runnels,  10  Mass.  518.)  "  A  libel  in  hieroglyphics  is  as  much  a  libel  as  an  open 
invective.  Not  only  an  allegory  but  a  rebus  or  an  anagram  may  be  a  libel." 
(Holt  on  Libel,  245.)  The  man  that  is  painted  with  a  fool's  cap  or  coat,  or  with 
horns,  or  whose  picture  is  drawn  with  asses'  ears,  is  certainly  abused.  (1  "Wood's 
Inst.  445;  Holt  on  Libel,  244;  Du  Bost  v.  Beresford,  2  Camp.  512;  Mezzards 
Case,  2  City  Hall  Recorder,  113.) 

"I  know  what  I  am,  and  I  know  what  Snell  is;  I  never  buggered  a  mare." 
These  words  held  to  import  a  charge  of  buggery  against  Snell.  (S7iell  v. 
Webbling,  2  Lev.  150.)  But  the  words,  "  I  never  came  home  and  poxed  my  wife," 
held  not  capable  of  being  construed  as  a  charge  that  the  party  to  whom  the 
words  were  addressed  had  gone  home  and  poxed  his  wife.  {Clerk  v.  Dyer,  8  Mod. 
290.)  And  so  the  words,  "A  man  that  would  do  that  would  steal,"  held  not  to 
amount  to  a  charge  of  stealing.     {Stees  v.  Kemble,  27  Penn.  112.) 

The  defendant  wrote  a  pamphlet  called  "  Advice  to  the  Lord  Keeper,  by  a 
Country  Parson,"  wherein  he  would  have  him  love  the  church  as  well  as  the 
Bishop  of  Salisbury,  manage  as  well-  as  Lord  Havesham,  be  brave  as  another 
Lord,  &c.  The  defendant  was  found  guilty,  and  upon  motion  in  arrest  of  judg- 
ment, it  was  urged  that  no  ill  thing  was  said  of  any  person,  and  all  he  said  was 
good  of  them ;  but  by  the  court ;  the  words  were  laid  to  be  ironical,  and  the  jury 
have  found  them  to  be  so,  and  the  motion  was  refused.  {Reg.  v.  Browne,  Holt, 
425;  11  Mod.  86,  recognized;  Andrews  v.  Woodmansee,  15  Wend.  232;  Boydell 
v.  Jones,  4  M.  <fe  W.,  446;  7  Dowl.  Pr.  Cas.  210.)  So  where  the  words  were, 
"  You  are  no  thief."  (4  Rep.  19;  Cro.  Jac.  65  ;  2  Bulst.  138  ;  L'd  Raym.  236.) 
You  will  not  play  the  Jew  nor  the  hypocrite.  {Rex  v.  Brown,  Popham,  139; 
Hob.  215.)  "An  honest  lawyer."  {Boydell  v.  Jones,  4  M.  <fc  W.  446;  7  Dowl., 
P.  C.  210.)  They  being  alleged  to  have  been  spoken  ironically,  and  so  found  by 
the  jury,  held  to  be  actionable. 

138  Shaw,  Ch.  J.,  Commonwealth,  v.  Child,  13  Pick.  19S.  The  court  will  regard 
the  use  of  fictitious  names  and  disguises  in  a  libel  in  the  sense  that  they  are  com- 
monly understood.  {The  State  v.  Chace,  Walk.  384.)  "If,  therefore,  obscure 
and  ambiguous  language  is  used,  or  language  which  is  figurative  or  ironical, 
courts  and  juries  will  understand  it  according  to  its  true  meaning  and  import ; 
and  the  sense  in  which  it  was  intended,  is  to  be  gathered  from  the  context  and 
from  all  the  facts  and  circumstances  under  which  it  was  used."  (Shaw,  Ch.  J., 
Commonwealth  v.  Kneeland',  20  Pick.  206 ;  and  see  Vanderlip  v.  Roe,  23  Penn. 
State  Rep.  (11  Harris),  82.) 

A  defamatory  writing  expressing  only  one  or  two  letters  of  a  name,  in  such  a 
manner  that  from  what  goes  before  and  follows  after  it,  must  necessarily  be  un- 
derstood to  signify  a  certain  person  in  the  plain,  obvious,  and  natural  construc- 
tion of  the  whole,  is  to  be  understood  as  if  the  name  were  written  in  full.    {Reg. 


CONSTRUCTION  OF  LANGUAGE.  119 

such  as  is  not  usually  found  in  any  dictionary,139  will  not  suffice 
to  prevent  the  law  taking  cognizance  of  such  language,  or  of 
the  meaning  it  properly  conveys.140 

v.  Hurt,  Hawk.  PI.  Cr.  194 ;  Rex  v.  Wood/all,  Lofft,  776  ;  Holt  on  Libel,  243.)  If 
in  a  libel  asterisks  be  put  instead  of  the  name  of  the  party  libelled,  it  is  suffi- 
cient that  the  plaintiff  should  be  so  designated  that  those  who  know  him  may 
understand  that  he  is  the  party  meant.  It  is  not  necessary  that  all  the  world 
should  undei'stand  that  the  plaintiff  is  the  party  intended.  (Bourke  v.  Warren, 
2  C.  <fc  P.  307);  and  see  in  note  140,  post,  and  note  132,  ante. 

139  One  "  cannot  protect  himself  from  an  action  by  the  mere  grammatical  struc- 
ture of  the  phrase."  (Cowen,  J.,  Cornelius  v.  Van  Slyck,  21  Wend.  70.)  "The 
etymology  of  words,  or  the  grammatical  construction  of  sentences,  will  be  falla- 
cious if  followed  as  the  only  guides  in  the  interpretation  of  language."  (Borth- 
wick  on  Libel,  142.)  "  Here  is  three  coekeh  in  this  place  we  now  them  well,  he  is 
a  nave,  he  cheats  and  rongs  the  country,  and  is  the  cur  of  a  son  of  a  whore."  The 
indictment  for  these  words  was  demurred  to  because  the  words  were  not  intel" 
ligible,  but  the  court  overruled  the  demurrer,  and  said  "  it  would  be  hard  that  a 
court  of  justice  must  not  understand  what  is  spelt  badly,  when  all  the  world  besides 
make  no  scruple  to  find  the  signification  of  the  words."  {Rex  v.  Edgar,  2  Sess. 
Cas.  29,  PI.  33.)  "  Common  sense  is  not  to  be  deemed  a  stranger  to  legal  process, 
but  as  very  influential  in  ascertaining  the  force  and  effect  of  words  and  sentences 
which,  although  technical,  are  to  receive  a  sensible  construction."  (Parker, 
Ch.  J.,  Commonwealth  v.  Runnels,  10  Mass.  518.) 

140  Courts  take  judicial  notice  of  the  meaning  of  words  and  idioms  in  the  ver- 
nacular language.  (1  Greenl.  Ev.,  §  5,  citing:  6  Vin.  Ab.  491,  PI.  6,  7,  8;  Tit. 
Court  C. ;  Hoyle  v.  Cornwallis,  1  Stra.  387 ;  Page  v.  Faucet,  Cro.  El.  227 ;  Harvey 
v.  Brand,  2  Salk.  626;  and  see  note  142,  post.)  And  no  colloquium  or  innuendo 
is  necessary  to  point  their  meaning.  (Elam  v.  Badger,  23  111.  498  ;  Forbes  v. 
Eing,  1  Dowl.  P.  C.  672;  Hoare  v.  Silverlock,  12  Adol.  &  Ell,  N.  S.  624;  Horner 
v.  Taunton,  5  Hurl.  &  Nor.  661;  Edgar  v.  McCutchen,  9  Miss.  768.)  Thus,  in 
Hoare  v.  Silverlock  (12  Ad.  <fe  EL,  N.  S.  624),  the  court  took  judicial  notice,  with- 
out an  innuendo,  of  the  reproachful  meaning  of  the  term  "  frozen  snake ;"  and 
so  in  Ashley  v.  BUlington  (Carth.  231),  of  the  term  "Jezebel,"  and  so  of  the 
terms  "Empirick"  and  "Mountebank."  (Vin.  Abr.,  Act.  for  Words,  S.  a.  12.) 
In  King  v.  Lake  (2  Ventr.  18),  the  court  said  they  could  not  take  notice  of  "milk 
your  purse,"  because  it  had  not  become  an  idiom.  See  as  to  "  Man  Friday," 
"  Gambling  Fracas."  (Forbes  v.  King,  1  Dowl.  672.)  Shooting  out  of  a  leather 
gun.  (Harman  v.  Delany,  2  Stra.  898.)  "  Bogus  pedlar"  was  said  not  to  have 
acquired  a  meaning  sufficiently  definite  to  allow  the  court  to  take  judicial  notice 
of  its  import.  {Pike  v.  Van  Wormcr,  6  How.  Pr.  R.  101 ;  5  id.  175.)  The  law 
does  not  take  notice  of  what  a  "cozener"  is  (Walcot  v.  Hind,  Ilutt.  14);  or 
the  meaning  of  "tan  money."  (Day  v.  Robinson,  1  Ad.  &  El.  554.)  Wool- 
comber,  held  not  to  need  an  innuendo  to  show  it  means  one  who  buys  wool  to 
work  with.     (Anon.  Lofft,  322.)     Truckmastcr,  a  word  said  not  to  be  found  in 


120  CONSTRUCTION  OF  LANGUAGE. 

§  134.  Whenever  language  charged  to  be  defamatory  has 
any  reference  to  or  is  connected  with  any  other  language  or 
event,  which  affects  its  meaning,  it  must  be  construed  in  rela- 
tion to  such  other  language  or  event ;  and  this,  although  on 
the  face  of  the  alleged  defamatory  matter  there  is  no  reference 
to  any  other  language  or  event.  In  the  absence,  however,  of 
any  proof  to  the  contrary,  matter  which  has  on  its  face  no  refer- 
ence to  any  other  language  or  event,  will  not  be  presumed  to 
have  any  such  reference,  and  must  be  construed  as  standing 
alone.141 


any  dictionary,  was  used  without  an  innuendo ;  it  was  left  to  jury  to  decide  if 
used  in  libellous  sense.     {Homer  v.  Taunton,  5  Hurl.  &  Nor.  661.) 

The  court  is  to  inform  itself  of  the  meaning  of  English  words,  although  un- 
usual and  peculiar  to  a  particular  place  (Parke,  B.,  McGregor  v.  Gregory,  2 
Dowl.,  N.  S.  769  ;  11  M.  &  W.  287 ;  Com.  Dig.,  Act.  for  Defam.  C),  as  healer  of 
felons  (Rolle  Abr.  86);  or  Welsh  words  (Hobart,  126),  Daffa-down-dilly,  by  aver- 
ment meaning  ambo  dexter  {Pearce's  Case,  Cro.  Car.  382);  and  where  particular 
English  words  have  acquired  some  sense  different  from  their  natural  one,  an  aver- 
ment by  way  of  inducement  of  that  acquired  sense  is  necessary ;  an  innuendo 
without  such  an  averment  would  be  insufficient  {McGregor  v.  Gregory,  2  Dowl. 
N.  S.  769);  so  held  of  the  terms  black  sheep  and  black  legs  {id.);  and  see  notes 
142,  146,  post. 

141  Explanatory  circumstances  known  to  both  parties,  speaker  and  hearer,  are 
to  be  taken  into  the  account  as  part  of  the  words.  {Dorland  v.  Patterson,  23 
Wend.  422,  citing  Andrews  v.  Woodmansee,  15  id.  232;  Miller  v.  Maxwell,  16  id. 
9  ;  and  see  Hankinson  v.  Bilby,  2  Car.  and  Kir.  440  ;  Perry  v.  Mann,  1  Ehode  I. 
263.)  Words  otherwise  actionable  explained  at  the  time  of  publication  by 
referring  to  a  known  and  particular  transaction  are  to  be  construed  accordingly. 
{Dote  v.  Rensselaer,  3  Johns.  Cas.  458;  Aldrich  v.  Brown,  11  Wend.  596;  Trabue 
v.  Mays,  3  Dana,  138;  Emery  v.  Miller,  1  Denio,  208;  Thompson  v.  Bernard,  1 
Camp.  48 ;  Shecut  v.  M'Dowel,  Const.  Rep.  35 ;  Christie  v.  Cowell,  Peake,  4 ; 
Pegram  v.  Styron,  1  Bailey,  595.)  Words  which  do  not  necessarily  import  any- 
thing injurious,  may  do  so  when  taken  in  connection  with  other  charges  {Beards- 
ley  v.  Tappan,  1  Blatch.  C't  Co't  Rep.  588),  or  according  to  the  common  under- 
standing of  them.  {Cooper  v.  Perry,  Dudley,  247.)  The  defendant  may  show 
the  language  related  to  some  transaction  {Ceely  v.  Hoskins,  Cro.  Car.  509  ;  Norton 
v.  Ladd,  5  N.  H.  203),  or  was  uttered  in  connection  with  other  words,  which  con- 
trolled its  meaning.  {Stevens  v.  'Handley,  Wright,  123;  Williams  v.  Cowley,  18 
Ala.  206;  Bays  v.  Mitchell,  7  Blackf.  117;  Robinson  v.  Eeyser,  2  Foster  (N.  H.), 
323.) 

Where  the  language  is  prima  facie  actionable,  the  burden  is  on  the  defendant 
to  show  that  they  are  not  actionable.     (2  Starkie  on  Slander,  85 ;  Pen/old  v. 


CONSTRUCTION  OF  LANGUAGE.  121 

It  is  impossible  to  anticipate  or*  catalogue  all  the  circum- 
stances which  may  affect  the  meaning  of  language,  but  among 
them  are  the  circumstances  of  time,  place,  and  usage,142  and 
some  others  to  be  presently  mentioned. 

Westcole,  2  N.  R.  335;   Christie  v.  Cowell,  Peake's.Cas.  4;    Sel.  N.  P.  1250;  Bissel 
v.  Cornell,  24  "Wend.  354;    Watson  v.  Nicholas,  6  Hump.  174.,) 

143  "  Libel  *  *  *  has  been  variously  construed  at  various  times  ;  being  a 
mere  legal  reason,  and  therefore  variable  not  only  according  to  all  the  circum- 
stances of  the  times,  but  according  to  the  ability  and  information  of  the  judges. 
In  ignorant  and  despotic  times  it  had  not  the  same  limits  and  precision  as  in  the 
days  of  liberty  and  science."  (Holt  on  Libel,  43.)  "  In  judging  of  the  meaning 
of  language,  our  juries  have  been  directed  to  attend  to  the  criteria  of  the  time, 
the  place,  when  and  where,  and  the  person  by  and  to  whom  the  language  has 
been  employed."     (Borthwick  on  Libel,  142.) 

"  Precedents  in  actions  for  words  are  not  of  equal  authority  as  in  other  actions ; 
norma  loqwndi  is  the  rule  for  the  interpretation  of  words,  and  this  rule  is  differ- 
ent in  one  age  from  what  it  is  in  another.  The  words  which  an  hundred  years 
ago  did  not  import  a  slanderous  sense,  may  now,  and  vice  versa."  (Harrison  v. 
Thornborough,  10  Mod.  196;  cited  Beardsley  v.  Dibblee,  1  Kerr,  246.)  And  it  is 
the  duty  of  courts  to  take  notice  of  the  mutations  in  language.  ( Va?iada's  Heirs 
v.  Hopkins,  1  Marshall  Ken.  R.  28*7.)  The  precedents  in  Croke's  reports  are  be- 
ginning to  be  considered  apocryphal."  (Gibson,  J.,  Bash  v.  Sommer,  20  Penn.  St. 
R.  159.)  "Many  of  those  cases  [in  Cro.  Jac.  and  Cro.  Car.]  could  not  be  sup- 
ported at  the  present  day.  I  do  not  mean  to  cast  any  doubt  upon  the  cases 
quoted  from  Bacon's  Abridgement  and  Corny n's  Digest."  (Pollock,  C.  B.,  Tozer 
v.  Mashford,  6  Ex.  539;  and  see  Beardsley  v.  Dibblee,  1  Kerr,  260;  Foster  v. 
Small,  3  Whart.  143 ;  Bloss  v.  Tobey,  2  Pick.  320.)  Bridgeman,  Ch.  J.,  said  he 
was  not  satisfied  to  go  by  precedents,  because  he  held  that  to  be  scandalous  now 
which  was  not  twenty  years  ago.  That  it  is  use  makes  words  have  force,  and 
words  that  are  actionable  now,  hereafter  may  not  be  so.  (Carth.  55.)  "  The 
opinions  of  later  times  have  been  in  many  instances  different  from  those  in  former 
days  in  relation  to  words."     (Holt,  Ch.  J.,  Baker  v.  Pierce,  6  Mod.  23.) 

In  the  time  of  Charles  the  Second  of  England,  it  was  held  actionable  to  call 
one  a  Papist  or  to  say  he  went  to  Mass  (Row  v.  Clargis,  L'd  Raym.  482 ;  2 
Salk.  696  ;  Walden  v.  Mitchell,  2  Vent.  265 ;  Cutler  v.  Friend,  2  Show.  140) ;  but 
held  otherwise  in  the  reign  of  King  James.  (Ireland  v.  Smith,  2  Brown.  166.) 
So  in  England,  to  write  of  one  that  he  was  a  "  Man  Friday,"  was  held  not  action- 
able (Forbes  v.  King,  1  Dowl.  P.  C.  672;  1  Cr.  &  M.  435 ;  2  Law  Jour.  Rep.  N.  S. 
Ex.  109),  for  the  reason  as  stated  in  Hoare  v.  Si/verlock,  12  Adol.  &  El.  N.  S.  624, 
that  being  a  black  man  might  be  a  great  misfortune,  but  was  no  crime ;  while  in 
the  United  States  it  has  been  held  actionable  to  call  one  a  Mulatto.  (King  v. 
Wood,  1  N.  &  M.  (So.  Car.)  184 ;  Eden  v.  Legare,  1  Bay,  171 ;  Atkinsons.  Hartley, 
1  McCord,  203  ;  contra  Barrett  v.  Jar  vis,  1  ILimm.  83,  note ;  see  Borthwick  on 
Libel,  176;  Trench's  English  Past  and  Present;  Mills'  Logio,  Bk  iv.  ch.  v. — The 
history  of  variations  in  the  meaning  of  terms.) 


122  CONSTRUCTION  OF  LANGUAGE. 

§  135.  In  allowing  extraneous  circumstances  to  affect  the 
construction  of  language,  courts  inquire  whether  or  not  the 
hearer  or  reader  of  the  language  knew  such  circumstances.  If 
the  hearer  or  reader  was  acquainted  with  those  extraneous 
circumstances,  the  construction  will  be  with  reference  to  them, 
not  because  it  is  important  how  the  hearer  or  reader  under- 
stood the  language,  but  because  those  circumstances  form  a 
proper  element  in  determining  the  meaning  to  be  attributed  to 
the  language  in  question.  If  the  hearer  or  reader  was  not 
acquainted  with  those  extraneous  circumstances,  then  they  will 
not  be  taken  into  consideration  in  determining  the  meaning  of 
the  language.  The  hearer  or  reader  not  being  acquainted  with 
those  circumstances  which  affect  the  meaning  of  the  language, 
its  effect  upon  such  hearer  or  reader  is  as  if  no  such  circum- 
stances existed,  and  the  language  is  to  be  construed  without 
reference  to  such  circumstances.  The  circumstance  that  the 
act  charged  is  physically  or  legally  impossible,  does  not  always 
prevent  the  language  being  actionable.  The  alleged  test  in 
such  a  case  is  the  knowledge  possessed  by  those  to  whom  the 
language  is  published.  Thus  where  the  defendant  attributed 
to  the  plaintiff  sexual  intercourse  with  a  dog,  and  of  having 
given  birth  to  a  litter  of  pups  in  consequence  of  such  inter- 
course, it  was  held,  not  to  be  a  defence — that  such  a  result  was 
impossible.  But  semhle  that  it  might  have  been  a  defence  if 
it  had  been  shown  that  the  defendant  and  those  who  heard  the 
words  knew  that  such  a  result  was  impossible.143 

The  word  " screwed,"  or  " strained"  does  not  of  itself  import  sexual  inter- 
course, but  in  certain  localities  it  may  have  that  import.  {Mills  v.  Van  Horn,  17 
Ind.  245 ;  Vin.  Abr.  Act.  for  Words,  L.  b.  V.)  In  London,  England,  pimp  signi- 
fies common  baivd.  (Dimmock  v.  Fawset,  Cro.  Car.  393,  pi.  5.)  Healer  of  felons 
means,  in  some  localities,  aider  of  felons  ;  limir  means  thief,  and  outputter  mean3 
receiver  of  felons  (Vin.  Abr.,  Act.  for  Words,  L.  b.  1,  6),  and  see  id.  4,  7,  as  to 
the  word  champertor  and  the  phrase  cut  him  out  of  doors  ;  and  see  note  140,  ante. 

143  Kennedy  v.  Gifford,  19  Wend.,  296.  Courts  cannot  say  judicially  whether 
it  be  possible  for  a  woman  to  have  connection  with  a  dog,  or  to  have  pups  by 
him,  but  as  it  is  not  popularly  believed  to  be  impossible,  the  people  not  being 
presumed  to  know  scientific  facts,  the  injury  to  the  plaintiff  will  be  the  same  in 
either  case,  and  the  action  will  lie.     (Ausman  v.  Veal,  10  Ind.,  355.) 

In  Fenn  y.Dixe,  Jo.  444,  pi.  5,  the  words  were  of  a  brewer  and  his  beer.     "I 


CONSTRUCTION  OF  LANGUAGE.  123 

To  charge  A.  with  the  murder  of  B.,  although  B.  was  alive 
at  the  time,  would  be  actionable ;  but  semhle  not  so  if  those  to 
whom  the  publication  was  made  knew  that  B.  was  alive.144     So, 

■will  give  my  mare  a  peck  of  malt,  and  lead  her  to  the  water  and  let  her  drink, 
and  she  shall  piss  as  good  beer  as  any  Tom  Fenn  (the  plaintiff )  brews."  One 
reason  assigned  for  holding  the  words  not  to  be  actionable,  was  that  the  words 
were  impossible  to  be  true  in  the  understanding  of  any  man. 

"  Thou  art  a  bastard-bearing  whore,  and  hadst  two  bastards."  It  was  objected 
that  these  words  spoken  of  a  married  woman  were  not  actionable,  because  a  mar- 
ried woman  cannot  have  a  bastard,  but  held  actionable  because  they  purported 
that  she  was  not  married  when  she  had  the  bastards.   (Stevens  v.  Ask,  Sty.  424.) 

These  words  concerning  a  churchwarden,  "  Who  stole  the  bell  ropes,  you 
scamping  rascal  ?"  Not  actionable,  because  the  property  of  the  bell  ropes  was  in 
the  plaintiff  as  churchwarden,  and  as  he  could  not  steal  his  own  property,  the 
words  imputed  no  felony.  (Jackson  v.  Adams,  2  Bing.  N.  C.  462.)  "  If  a  man 
says  to  a  miller  who  keeps  a  corn  mill,  thou  hast  stolen  three  pecks  of  meal,  an 
action  lies  ;  for,  although  the  corn  was  delivered  to  him  to  grind,  nevertheless, 
if  he  steal  it,  it  is  felony,  beiDg  taken  from  the  rest."  (1  Rolle's  Abr.,  73,  s.  16, 
cited  Nichols  v.  The  People,  17  N.  Y.  117,"  and  see  Hume  v.  Arrasmith,  1  Bibb, 
165.) 

In  an  action  for  slander  the  words  were,  "  You  are  a  thief;  you  robbed  Mr. 
L.  of  £30."  The  words  were  spoken  in  the  hearing  of  B.  and  of  several  strangers. 
B.  knew  that  the  words  did  not  mean  to  impute  felony,  but  meant  to  impute  that 
the  plaintiff  had  improperly  obtained  £30  from  Mr.  L.  to  compromise  an  action 
for  a  distress.  Held,  that  under  these  circumstances  the  question  to  be  left  to 
the  jury  was  not  what  the  defendant  meant  by  the  words  he  spoke,  but  what  reasonable 
men,  hearing  the  words,  would  understand  by  them.  Semble,  also,  that  if  all  the 
persons  present  when  the  words  were  spoken  had  known  that  the  words  did  not 
impute  felony,  that  would  have  been  an  answer  to  the  action.  (Hankinson  v. 
Bilby,  2  Car.  &  Kir.  440 ;  16  M.  <fc  W.  442.)  The  mere  fact  that  the  defendant 
charged  the  plaintiff  with  theft,  in  regard  to  an  article  of  property  which  had 
been  either  loaned  or  sold  to  the  plaintiff,  but  which  sale  or  loan  was  not  known 
to  those  in  whose  presence  he  made  the  charge,  will  not  be  a  ground  of  showing 
either  that  the  act  charged  was  impossible  or  that  the  charge  was  not  seriously 
made.     (Smith  v.  Miles,  15  Verm.,  245.) 

144  So  held,  Sergart  v.  Carter,  1  Dev.  &  Bat.  8;  Snag  v.  Gee,  4  Coke,  16. 
"You  have  killed  A. ;  you  have  poisoned  him,"  are  slanderous  words,  though,  at 
the  time  they  were  spoken,  A.  was  living  in  a  distant  part  of  the  country.  {Eck- 
art  v.  Wilson,  10  S.  &,  R.,  44  ;  and  see  Tenneyv.  Clement,  10  N.  H.  52  ;  Carter  v. 
Andrews,  16  Pick.  1;  Stone  v.  Clark,  21  Pick.  51;  Stallingsv.  Newman,  26  Ala. 
300.)  Wilt  thou  murder  my  sister  as  thou  didst  thy  wife,  actionable  although 
the  wife  was  alive.  (Brown  v.  Charlton,  Keb.  359,  pi.  52.)  Thy  father  says  thou 
hast  murdered  thy  husband.  Judgment  was  arrested  after  verdict  for  plaintiff 
for  these  words,  because  it  was  not  alleged  that  the  husband  was  dead  at  the  time 
the  words  were  spoken.     (Boldroe  v.  Porter,  Yelv.  20.)     Words  actionable  per  se 


124  CONSTRUCTION  OF  LANGUAGE. 

se?iible,  one  tenant  in  common  of  chattels  cannot  be  guilty  of 
larceny  of  the  chattels  held  in  common ;  and  therefore  to 
charge  one  of  several  tenants  in  common  with  larceny  of  a 
chattel  held  in  common,  would  be  actionable,  unless  those  to 
whom  the  publication  was  made  knew  of  the  tenancy  in  com- 
mon.145 

§  136.  In  the  case  of  all  oral,  and  of  some  written  publica- 
tions, it  may  be  possible  to  prove  whether  or  not  the  hearer  or 
reader  was  acquainted  with  such  extraneous  circumstances,  but 
in  the  majority  of  cases  it  would  be  impossible  to  make  such 
proof.  Some  circumstances  are  of  such  general  notoriety  that 
every  person  is  presumed  to  be  acquainted  with  them,  and  then 
all  language  must  be  construed  in  reference  to  them.146  With 
circumstances  of  less  general  notoriety  the  knowledge  of  the 
hearer  or  reader  is  in  every  case  a  question  of  proof,  and  the 

are  not  so  when  spoken  of  a  transaction  not  amounting  to  the  crime  charged  if 
known  to  the  hearers  to  be  so  spoken.  {Parmer  v.  Anderson,  33  Ala.  18 ;  Han- 
kinsonv.  Bilby,  2  Car.  &  K.  440;  Perry  v.  Man,  1  Rhode  Island,  263;  Kennedy 
v.  Gifford,  19  Wend.  296;  Williams  v.  Stott,  1  Cr.  &  M.  675;  3  Tyrw.  688);  and 
see  post,  note  354. 

146  Carter  v.  Andrews,  16  Pick.  1 ;  Stone  v.  Clarke,  21  Pick.  51 ;  and  see  note 
143,  ante. 

146  "  It  is  the  duty  of  the  jury  to  construe  plain  words  and  clear  allusions  to  mat- 
ters of  universal  notoriety,  according  to  their  obvious  meaning  and  as  everj-body 
else  who  reads  must  understand  them.  But  the  defendant  may  give  evidence  to 
show  they  were  used  on  the  occasion  in  question  in  a  different  or  qualified  sense. 
If  no  such  evidence  is  given,  the  natural  interpretation  of.  the  words  and  the 
obvious  meaning  to  every  man's  understanding,  must  prevail."  (Lord  Mansfield, 
Rex  v.  Home,  2  Cowper,  672.) 

"You  are  a  soldier;  I  saw  you  in  your  red  coat  doing  your  duty  ;  your  word 
is  not  to  be  taken."  These  words,  spoken  of  an  upholsterer,  held  actionable,  it 
being  known  to  be  a  common  practice  for  tradesmen  to  protect  themselves  from 
arrest  by  their  creditors  by  a  counterfeit  listing.  {Arne  v.  Johnson,  10  Mod. 
111.) 

In  an  action  for  libel  for  writing  to  a  client  of  the  plaintiff,  a  barrister,  "  lie 
would  give  her  ill  counsel  and  stir  up  a  suit;  he  would  milk  her  purse  and  fill  his 
own  large  pockets,"  per  Vaughan,  C.  J.,  "  Saying  he  will  milk  your  purse,  taken 
annunciatively,  signifies  no  more  than  milking  a  bull ;  the  phrase  is  not  come  to 
an  idiom."  {King  v.  Lake,  2  Ventr.,  18.)  Mr.  Parry,  in  his  edition  of  Lord  Camp- 
bell's Libel  Act,  says  (p.  13)  it  is  doubtful  if  this  decision  could  now  be  sup- 
ported, and  we  agree  with  him.     See  note  140,  ante. 


CONSTRUCTION  OF  LANGUAGE.  125 

burden  of  making  such  proof  rests  upon  him  who  claims  that 
the  hearer  or  reader  possessed  such  knowledge. 

§  137.  The  construction  to  be  put  upon  any  language  spoken 
or  written  must  be  that  which  is  consistent  with  the  whole  of 
the  speech  or  writing.  Thus  the  language  of  any  part  of  a 
writing  is  to  be  construed  with  reference  to  the  entire  writing, 
and  the  language  of  any  part  of  an  oral  discourse  is  to  be  con- 
strued with  reference  to  the  entire  discourse.  Hence  words 
which,  standing  alone,  would  be  actionable,  may  not  be  action- 
able when  taken  in  connection  with  their  context.147 

§  138.  Formerly  the  condition  in  life  of  the  person  spoken 
of  materially  affected  the  construction,  and  words  concerning 
"great  men  of  the  realm"  were  held  actionable,  which  would 
not  have  been  so  held  when  published  concerning  private  per- 
sons. Language  defaming  these  "  great  men  "  was  called  scan- 
dalwn  magnatum.  In  the  United  States  no  such  distinction 
of  persons  is  known.148  How  far  the  condition  in  life  of  the 
parties  will  affect  the  damages  will  hereafter  be  considered. 

147  The  sense  is  to  be  gathered  from  the  whole  of  the  words  or  writing.  (2 
Starkie  on  Slander;  Cooke  v.  Hughes,  1  R.  &  M.  112;  Carter  v.  Andrews,  16 
Pick.  1.)  The  construction  which  it  behooves  a  court  of  justice  to  put  on  a  pub- 
lication is  to  be  derived  as  well  from  the  expressions  used  as  from  the  whole 
scope  and  apparent  object  of  the  writer.  {Cooper  v.  Greely,  1  Denio,  358;  citing 
Spencer  v.  Southwick,  11  Johns.  592;  Fidler  v.  Delavan,  20  Wend.  57.)  "  God  for- 
bid that  a  man's  words  should,  by  strict  and  grammatical  construction,  be  taken 
by  parcels,  against  the  manifest  intent  of  the  party  upon  consideration  of  all  the 
words  which  import  the  true  cause  and  occasion  which  manifest  the  true  sense  of 
them."     (4  Co.  18.) 

A  defendant  should  be  tried  by  all  that  he  has  published  in  the  same  pamphlet 
or  paper.  (Morehead  v.  Jones,  2  B.  Munroe,  210.)  Brittridge  brought  an  action 
for  the  words,  "  Mr.  Brittridge  is  a  perjured  old  knave,  and  that  is  to  be  proved 
by  a  stake  parting  the  lands  of  Martin  and  Wright."  The  judgment  was  arrested, 
on  the  ground  that  the  latter  words  explained  the  former  as  not  meaning  judicial 
perjury.     (4  Co.  18;  Yelv.  10,  34;  Mo.  066.) 

148  For  information  as  to  scandalum  magnatum,  the  reader  is  referred  to  Star- 
kie on  Slander ;  Holt  on  Libel.  Secundem  gradum  dignitatis,  &c,  was  the  rule 
of  the  Roman  law,  and  is  the  rule  in  Scotland  and  in  France.  Borthwick  on 
Libel,  176,  177  n.,  Inst.  Lib.  IV.,  tit.  4;  Code  Criminel,  tit.  Ill,  art.  1 ;  Black. 
Com.  B'k  III.,  c.  vii.,  s.  5;  Selwy's  N.  P.  1155;  Barringtonon  Penal  Statutes;  3 
Reeve's  Hist,  of  the  Common  Law. 


126  CONSTRUCTION  OF  LANGUAGE. 

§  139.  The  sense  in  which  the  publisher  meant  the  language 
cannot  be  material.  The  dicta  which  apparently  sanction  such 
a  rule  will,  on  a  comparison  with  their  context,  be  found  in 
reality  to  be,  not  what  did  the  defendant  mean,  but  what  prop- 
erly may  he  be  taken  to  have  meant.  How  might  the  language 
be  understood  by  those  to  whom  it  was  published.  It  cannot-, 
therefore,  be  correct  to  say  that  the  language  is  to  be  construed 
in  the  sense  in  which  the  publisher  intended  it  to  be  understood. 
"  When  a  party  has  made  a  charge  that  clearly  imputes  a  crime, 
he  cannot  afterwards  be  permitted  to  say,  I  did  not  intend  what 
my  words  legally  imply."149 

§  140.  Where  the  language  is  amhiguous,  in  that  case  the 

1)9  Woodworth,  J.,  McKinly  v.  Rob,  20  Johns.  351.  Words  having  naturally 
none  of  their  own  carry  that  signification  to  the  hearer  that  he  is  used  to  put 
upon  them,  whatever  be  the  sense  of  him  that  uses  them.  (Locke,  Conduct  of  the 
Understanding,  §  35.) 

The  question  in  an  action  for  words  is  not  what  the  party  using  them  con- 
sidered their  meaning  by  any  secret  reservation  in  his  own  mind,  but  what  he 
meant  to  have  understood  as  their  meaning  by  the  party  to  whom  he  uttered 
them."     (Bead  v.  Ambridge,  6  C.  &  P.  308.) 

"  The  effect  of  the  words  used,  and  not  the  meaning  of  the  party  in  uttering 
them,  is  the  test  of  their  being  actionable  or  not."  That  is,  first  ascertain  the 
meaning  of  the  words  themselves,  and  then  give  them  the  effect  any  reasonable 
bystander  would  affix  to  them."  (Havkinson  v.  Bilby,  16  M.  &  W.  442.)  "The 
secret  intent  of  the  publisher  is  immaterial."  (Id.)  The  injury  caused  by  slander 
depends  on  the  effect  of  the  words  on  the  hearers.     (Hawks  v.  Patton,  18  Geo.  52.) 

The  speaker  "  is  accountable  for  the  import  of  the  words  as  they  will  natu- 
rally be  understood  by  the  hearer."  (Borland  v.  Patterson,  23  Wend.  424 ;  citing 
Harrison  v.  Thornborough,  10  Mod.  196;  Qidney  v.  Blake,  11  Johns.  54.)  "It 
was  not  enough  that  the  defendant  could  point  the  slander  in  his  own  mind,  so 
long  as  it  appears  to  have  been  pointless  in  the  minds  of  the  hearers."  (Id.)  It 
is  the  sense  in  which  the  hearers  understood  the  words  on  which  the  jury  are  to 
pronounce.  (Demarest  v.  Haring,  6  Cow.  76  ;  Kennedy  v.  Oifford,  19  Wend.  296.) 
"  Language  shall  be  construed  and  understood  in  the  sense  in  which  the  writer 
or  speaker  intended  it."  (Commonivealth  v.  Kneeland,  20  Pick.  206.)  If  the 
words  impute  a  crime,  it  is  not  necessary  to  allege  an  intention  to  charge  such 
crime.     (Galloway  v.  Courtney,  10  Rich.  Law,  414.) 

"  Nor  by  the  term  meaning  are  we  to  understand  what  the  defendant  intended 
to  express ;  for  he  may  have  designedly  written  that  which,  in  its  literal  sense, 
should  be  imperfect.  But  we  are  to  understand  the  meaning  which  he  intended 
others  should  believe  him  to  have — the  sense  in  which  he  designed  his  produc- 
tion should  be  received  by  others.     (George  on  Libel,  36.) 


CONSTRUCTION  OF  LANGUAGE.  127 

manner  in  which  it  was  or  might  be  understood  by  those  to 
whom  it  was  published  is  material,  and  will  control  in  de- 
termining the  meaning ;  but  where  the  language  is  unambig- 
uous, it  is  to  be  construed  in  its  ordinary  sense,  and  without 
reference  to  how  those  to  whom  it  was  published  understood 
it,  or  what  was  intended  by  the  publisher.150 

160  A  man  is  to  some  extent  responsible  for  the  hearing  of  the  bystanders,  if 
he  uses  language  which  imputes  crime,  with  an  explanation ;  if  the  bystanders 
did  not  hear  the  explanation,  he  is  liable  to  an  action.  {Maybee  v.  Fish,  42  Barb. 
336;  see,  however,  apparently  contra,  Shecut  v.  M'Dowell,  3  Brevard,  38.)  But 
the  understanding  of  the  bystanders  cannot  be  shown  to  make  words  actionable 
per  se,  which,  as  alleged  in  the  declaration,  are  not  actionable  per  se.  (Smith  v. 
Gafford,  33  Ala.  168.) 

"  Taken  by  itself,  and  without  more,  the  understanding  of  a  person  who  hears 
an  expression  is  not  the  legal  mode  by  which  it  is  to  be  explained.  If  words  are 
uttered  or  printed,  the  ordinary  sense  of  those  words  is  to  be  taken  to  be  the 
meaning  of  the  speaker."  (Daines  v.  Hartley,  3  Ex.  200.)  "  There  can  be  no 
doubt  that  words  may  be  explained  by  bystanders  to  import  something  very 
different  from  their  obvious  meaning.  The  bystanders  may  perceive  that  what 
is  uttered  is  uttered  in  an  ironical  sense,  and  therefore  that  it  may  mean  directly 
the  reverse  of  what  it  professes  to  mean.  Something  may  have  previously 
passed  which  gives  a  peculiar  character  and  meaning  to  some  expression ;  and 
some  word  which  ordinarily  is  used  in  one  sense  may,  from  something  that  has 
gone  before,  be  restricted  and  confined  to  a  particular  sense,  or  may  mean  some- 
thing different  from  that  which  it  ordinarily  and  usually  does  mean."     (Id.) 

"  We  are  to  understand  words  in  the  same  sense  as  the  hearers  understood 
them."  (Button  %.  Heyward,  8  Mod.  24.)  "  In  a  common  sense  according  to  the 
vulgar  intendment  of  the  bystanders."  (Somers  v.  House,  Holt,  39.)  "Words 
uttered  must  be  construed  in  the  sense  which  hearers  of  common  and  reasonable 
understanding  would  ascribe  to  them,  even  though  particular  individuals,  better 
informed  on  the  matter  alluded  to,  might  form  a  different  judgment."  (Hankin- 
8on  v.  Bilby,  16  M.  &  W.  442.)  Language  imputing  an  indictable  offence  is 
actionable  or  not,  according  to  the  sense  in  which  it  may  fairly  be  understood  by 
those  who  hear  or  read  it,  and  who  are  not  acquainted  with  the  matter  to  which 
they  relate,  or  which  may  render  them  a  privileged  communication.  (Id.)  To 
accept  the  understanding  of  the  words  by  the  hearer  or  reader  as  their  true 
meaning  "  would  be  to  make  the  defendant's  liability  depend,  not  on  his  own 
malicious  intent  and  purpose,  in  using  the  language,  which  might  be  quite  inno- 
cent and  free  from  blame,  but  upon  the  misconception  or  morbid  imagination  of 
the  person  in  whose  hearing  they  were  spoken."  (Heard  on  Libel,  §  268,  citing 
Sncll  v.  Snow,  13  Mete.  278;  Van  Vechten  v.  Hopkins,  5  Johns.  211 ;  Gibson  v. 
Williams,  4  Wend.  320;  Allensworth  v.  Coleman,  5  Dana,  315.)  The  judgment  of 
the  witness  is  not  to  be  substituted  for  the  judgment  of  the  jury.  (Heard  on 
Libel,  §  269.)     "Words  are  to  be  taken  in  that  sense  that  is  most  natural  and 


128  CONSTRUCTION  OF  LANGUAGE. 

§  141.  The  construction  of  language  as  actionable  or  not 
actionable,  is  sometimes  determined  by  the  knowledge  or  im- 
puted knowledge  of  the  person  spoken  of;  thus  the  words 
"  that  thief  A.  hath  stolen  my  goods  and  delivered  them  to 
Bacon,"  held  not  to  give  any  right  of  action  to  Bacon,  it 
not  being  alleged  he  knew  the  goods  were  stolen.151  So  of 
the  words  he  received  goods  that  were  stolen  and  will  be  hanged 
for  them.152  You  have  passed  counterfeit  money.153  So  to 
allege  that  one  got  his  sister  with  child,  or  had  carnal  inter- 
course with  his  daughter,  does  not  impute  incest  without  an 
allegation  that  the  plaintiff  was  guilty  of  the  act  charged  with 
a  knowledge  of  the  relationship.154  "Without  an  allegation  of 
knowledge,  it  was  held  not  actionable  to  charge,  "  He  hath 
gotten  much  wealth  by  trading  with  pirates,"155  or  "He  was 
confederate  with  Campion  the  Jesuit,"156  or  "He  poisoned 
Smith,"157  or  "He  is  a  maintainer  of  thieves,"158  or  "He 
offered,  or  was  about  to  offer  for  sale,  unwholesome  meal."159 

§  142.  It  is  customary  to  concede  (1)  that  formerly  courts 
construed  language  in  mitiori  sensu,  and  (2)  that  the  practice  of 
so  construing  language  has  been  abandoned.160     These  proposi- 

obvious,  and  in  which,  those  to  whom  they  are  spoken  will  be  sure  to  understand 
them.     {Id.,  §  163.)  ^ 

151  Bacon's  Case,  Dal.  41,  pi.  21. 

162  Ratcliff  v.  Long,  Palm.  6*7 ;  in  Miller  v.  Miller,  8  Johns.  74,  held  that  where 
the  offence  charged  was  concealing  stolen  goods,  it  was  not  necessary  to  allege 
that  the  plaintiff  knew  the  goods  were  stolen. 

153  Pike  v.  Van  Wormer,  6  How.  Pr.  R.  171 ;   Church  v.  Bridgman,  6  Miss.  190. 

154  Bumpkins  v.  Justice,  1  Smith  (Ind.)  322;   Griggs  v.  Yickroy,  12  Ind.  549. 
156  Crook  v.  Averin,  Godb.  252;  2  Bulst.  216. 

156  Brown  v.  Lisle,  Cro.  Eliz.  251. 

157  Jacob  v.  Miles,  Vin.  Abr.,  Act.  for  Words,  E.  b. ;  and  see  March  v.  Davison, 
9  Paige,  580,  and  post,  §  144,  subd.  x. 

158  Ball  v.  Bridges,  Cro.  Eliz.  746 ;  and  see  Tabbe  v.  Matthew,  1  Bulst.  109. 

159  Hemmenway  v.  Woods,  1  Pick.  524.     See  note  144,  ante. 

i6o  where  words  are  ambiguous,  so  as  they  may  be  expounded  in  good  or 
ill  part,  no  action  lies,  for  they  shall  be  expounded  in  the  best  sense.  (Anon. 
Cro.  Eliz.  672.)     "The  law  strains  not  to  hurt  but  to  heal."     (Coote  v.  Gilbert, 


CONSTRUCTION  OF  LANGUAGE.  129 

tions  require  some  qualification.     Alleged  defamatory  matter 
comes  before  the  court  for  construction  in  the  form  of  a  pleading, 


Hob.  77,  PI.  100);  and  "where  words  are  indifferent,  and  are  equally  liable  to 
two  distinct  interpretations,  we  ought  to  construe  them  in  mitiori  semu,  but  we 
will  never  make  any  exposition  against  the  plain,  natural  import  of  the  words." 
(Pratt,  C.  J.,  Button,  v.  Heyward,  8  Mod.  24;  and  see  Naber  v.  Miecock,  Skin.  183.) 
The  maxim  for  expounding  words  in  mitiori  scnsu  has  for  a  great  while  been  ex- 
ploded. (Fortescue,  J.,  Button  v.  Heywood,  8  Mod.  24 ;  Roberts  v.  Camden,  9  East, 
93;  and  see  Wakley  v.  Ecaley,  1  Com.  B.  591;  Off  dm  v.  Riley,  2  Green,  186 ; 
Duncan  v.  Brown,  15  B.  Monr.  1S6;  Fallenstcin  v.  Boothe,  13  Mo.  R.  427;  Dema- 
rest  v.  Haring,  6  Cow.  76 ;  Pike  v.  Van  Warmer,  6  How.  Pr.  R.  99 ;  Backus  v. 
Richardson,  5  Johns.  476.)  "The  earlier  English  judges  discouraged  the  action 
of  slander  by  all  sorts  of  evasions."  (Gibson,  J.,  Bash  v.  Sommer,  20  Penn.  St. 
R.  159  ;  and  see  Harrison  v.  Thornborou<jlt ,  10  Mod.  196.)  "  We  will  not  give 
more  favor  unto  actions  on  the  case  for  words  than  of  necessity  we  ought  to  do, 
where  the  words  are  not  apparently  scandalous,  these  actions  being  now  too  fre- 
quent." (Coke,  C.  J.,  Crofts  v.  Brown,  3  Bulst.  167.)  In  Alsop  v.  Alsop  (5  Hurl. 
&  N.  534),  the  court  say  actions  for  slander  are  not  to  be  encouraged;  and  to  the 
like  effect  see  Bennett  v.  Williamson,  4  Sandf.  67.  "  Although  slanders  are  to 
be  suppressed  yet  the  judges  had  resolved  that  actions  for  scandals  should  not  be 
maintained  by  any  strained  construction."  (Wray,  C.  J.,  Stanhope  v.  Blith,  4 
Co.  15.)  Ch.  J.  Holt  said,  that  whenever  words  tended  to  take  away  a  man's 
reputation,  he  would  encourage  actions  for  them,  because  so  doing  would  cod- 
tribute  to  the  preservation  of  the  peace ;  and  he  repeated  a  story  attributed  to 
Justice  Twisden,  of  a  man  who,  failing  in  his  action  for  words,  said,  if  he  thought 
he  should  not  have  recovered  damages  he  would  have  cut  the  defendant's  throat. 
(Baker  v.  Pearce,  L'd  Raym.  959 ;  6  Mod.  24 ;  Cas.  temp.  Holt,  654 ;  and  see 
ante,  note  33.)  One  who  couches  his  slander  in  ambiguous  terms,  in  the  hope  of 
blasting  the  reputation  of  his  neighbor,  without  incurring  any  legal  responsibil- 
ity, cannot  claim  an  indulgent  construction  of  his  words.  (Gibsonv.  Williams,  4 
Wend.  320.) 

StarMe  (1  Starkie  on  Slander,  47)  refers  to  the  following  cases  as  specimens 
of  the  doctrine  of  benignior  sensus :  "  Thou  art  as  arrant  a  thief  as  any  in  England, 
for  thou  broken  up  J.  S.'s  chest,  and  taken  away  £40."  After  verdict  for  plain- 
tiff held  not  actionable.  (Forster  v.  Browning,  Cro.  Jac.  687.)  "Thou  art  a 
lewd  fellow  ;  thou  didst  set  upon  me  by  the  highway,  and  take  my  purse  from 
me,  and  I  will  be  sworn  to  it."  After  judgment  for  the  plaintiff,  held  on  error 
not  actionable.  {Holland  v.  Stoner,  Cro.  Jac.  315.)  "  Thou  art  a  thievish  rogue, 
and  hast  stolen  bars  of  iron  out  of  other  men's  windows  ;  "  held  not  actionable. 
(Cro.  Jac.  204.)  "  J.  D.  was  robbed  of  £40,  and  Alice  Bagg  (the  plaintiff)  and 
J.  S.  had  it,  and  for  which  they  will  be  hanged  ;  "  after  judgment  for  plaintiff, 
held  not  actionable.  (King  v.  Bagg,  Cro.  Jac.  331.)  And  so  of  "  Thou  dost  lead 
a  life  in  manner  of  a  rogue;  I  doubt  not  but  to  see  thee  hanged  for  striking  Mr.. 
Sydman's  man,  who  was  murdered."  (Barrons  v.  Ball,  Cro.  Jac.  331.) 
9 


130  CONSTRUCTION  OF   LANGUAGE. 

and  then  of -course  is  governed  by  the  rule  for  construing  pleadings, 
that  the  pleader  is  supposed  to  have  stated  his  case  in  the  man- 
ner most  favorable  to  himself.161  We  think  that  an  examination 
of  the  decisions  will  disclose  the  fact  that  what  are  regarded  as 
constructions  in  mitiori  sensu  are  usually  a  more  or  less  rigor- 
ous application  of  this  rule  of  pleading.  The  words  admitting 
of  two  constructions,  the  one  actionable  and  the  other  not  ac- 
tionable, where  the  pleader  failed  to  point  the  language  to  the 
actionable  meaning,  courts  have  refused  to  put  the  actionable 
meaning  on  the  language,  supposing  that  if  the  language  had 
such  a  meaning  the  pleader  would  have  pointed  it  out.  The 
rule  requiring  certainty  in  the  allegations  of  a  pleading  was  no 
doubt  carried  to  excess,162  but  we  take  it  to  have  always  been 
and  to  be  still  the  rule,  that  where  a  party  makes  a  charge  of 
slander  it  is  for  him  to  show  that  the  words  have  a  slanderous 
sense,163  and  that  where  the  language  is  equally  susceptible  of 

161  The  law  will  not  assume  in  favor  of  a  party  any  thing  he  has  not  averred 
(Cruger  v.  Hudson  River  R.R.  Co.,  2  Kernan,  201),  or  that  the  pleading  is  less 
strong  than  the  facts  warrant  (id.).  A  pleading  is  to  be  construed  in  its  popidar 
sense  (  Woodbury  v.  Saclrider,  2  Abb.  Pr.  R.  405  ;  Munn  v.  Morewcod,  5  Sandf. 
557);  according  to  what  it  says,  and  not  what  the  pleader  intended.  (Gould  v. 
Glass,  19  Barb.  185;  and  see  Allen  v.  Patterson,  3  Selden,  480;  Sheddony.  Pat- 
rick, 28  Eng.  Law  &  Eq.  R.  68.)  The  court  will  not,  in  support  of  a  pleading, 
infer  a  criminal  intention  where  the  pleader  has  not  ventured  directly  to  aver  its 
existence.  (Bartholomew  v.  Bentley,  15  Ohio,  670.)  "  It  is  a  clear  principle  that 
the  language  of  an  indictment  [a  pleading]  must  be  construed  by  the  rules  of 
pleading,  and  not  by  the  common  interpretation  on  ordinary  language,  for  nothing 
indeed  differs  more  widely  in  construction  than  the  same  matter  when  viewed 
by  the  rules  of  pleading  and  when  construed  by  the  language  of  ordinary  life." 
(Per  Erie,  J.,  in  Reg.  v.  Thompson,  16  Q.  B.  832,  846 ;  4  Eng.  Law  and  Lq.  R.  287, 
292.) 

162  Action  for  the  words  Home  dit :  Sir  Th.  Holt  hath  taken  a  cleaver  and 
stricken  his  cook  upon  the  head,  so  that  one  side  of  the  head  fell  upon  one  shoul- 
der and  the  other  upon  the  other  shoulder,  et  [the  declaration]  ne  averr  que  le 
cook  fuit  mort,  et  pur  ceo  fait  adjudge  neiny  bon.     (Rolle  R.  286.) 

163  Tindal,  Ch.  J.,  Edsall  v.  Russell,  5  Scott  N.  R,  801 ;  2  Dowl.  N.  S.  614 ;  4 
M.  &  G.  1090 ;  12  Law  Jour.  Rep.  N.  S.  C.  P.  4;  note  136,  ante.  "  Either  the 
words  themselves  must  be  such  as  can  only  be  understood  in  a  criminal  sense,  or 
it  must  be  shown  in  a  colloquium  in  the  introductory  part  that  they  have  that 
meaning,  otherwise  they  are  not  actionable."  (Holt  v.  Scholefield,  6  T.  R.  691.) 
Words  to  be  actionable  should  be  unequivocally  so.     (Harrison  v.  Stratton,  4 


CONSTRUCTION  OF  LANGUAGE.  131 

both  a  harmless  and  an  injurious  meaning,  it  is  the  duty  of  the 
pleader  and  not  of  the  court  to  point  out  the  injurious  meaning, 
and  that  if  he  fails  to  do  this  the  court  will  not  put  upon  the 
language  the  injurious  meaning.  Although  there  may  be  no 
rule  to  put  on  ambiguous  language  its  non-actionable  sense, 
certainly  there  is  no  rule  by  which  courts  put  on  ambiguous 
language  the  actionable  sense.  The  rule  is  that  the  natural 
meaning  is  to  be  taken,164  and  if  in  that  view  the  language  will 
bear  a  non-actionable  meaning  equally  as  well  as  an  actionable 
one,  courts  will  adopt  the  non-actionable  construction.  Where 
the  meaning  is  doubtful,  the  pleader  may  by  an  innuendo  point 
the  language  to  the  sense  in  which  he  wishes  it  to  be  understood. 
Where  the  alleged  defamatory  matter  stated  that  A.  was  a  pros- 
titute, and  that  she  was  under  the  patronage  or  protection  of  the 
plaintiff,  but  there  was  no  innuendo  pointing  an  injurious  mean- 
ing, the  language  was  held  not  actionable.  The  court  held,  in 
effect,  that  it  would  not  take  the  worst  or  most  injurious  sense 
when  the  words  may  properly  receive  a  harmless  as  well  as  an 
offensive  construction.165 

§  143.  Where  language  may  be  taken  in  a  double  sense, 
the  court,  after  a  verdict,  will  usually  construe  it  in  that  sense 

Esp.  Cas.  218.)  Where  there  is  no  colloquium,  the  plaintiff  must  be  held  to  allege 
that  the  words  were  used  in  their  natural  and  ordinary  signification  {Edgcrly 
v.  Swain,  32  N.  Hamp.  478) ;  and  they  will  be  so  construed,  and  not  in  mitiori 
scnsn.  (Chaddock  v.  Briggs,  13  Mass.  248;  Bloss  v.  Tobey,  2  Pick.  320.)  Where 
the  words  have  two  meanings,  one  of  them  harmless,  and  the  other  injurious,  tlie 
innuendo  may  properly  point  out  the  injurious  meaning.  (Joralemon  v.  Pomeroy 
2  N.  Jersey,  271 ;  Griffith  v.  Lewis,  8  Q.  B.  841 ;  1  Law  Times,  177  ;  Gosling  \. 
Morgan,  32  Penn.  St.  R.  273.) 

w  Words  "are  not  to  be  taken  in  the  more  lenient  or  the  more  severe  sense, 
but  in  the  sense  which  fairly  belongs  to  them,  and  which  they  were  intended  to 
convey.  (L'd  Ellenborough,  Ilex  v.  Lambert,  2  Camp.  N.  P.  Cas.  398.)  See  note 
131,  aide. 

'  '  More  v.  Bennett,  33  How.  Pr  R.  180 ;  and  see  Dolloway  v.  Turrell,  26  Wend. 
383.  In  Edsall  v.  Russell,  5  Scott,  N.  R.  801  ;  2  Dowl.  N.  S.  614;  4  Man.  &.  G. 
1090,  the  words  were,  "He  made  up  the  medicines  wrong  through  jealousy,  be- 
cause  1  would  not  allow  him  to  use  his  own  judgment."  There  being  no  innuendo 
that  the  defendant  meant  to  impute  that  the  medicines  occasioned  any  injury,  the 
court  refused  to  put  that  meaning  upon  them,  and  held  the  words  not  actionable. 
And  see  Forbes  v.  King,  1  Dowl.  672;  Kelly  v.  Partington,  5  B.  <fe  Adol.  645. 


132  CONSTRUCTION  OF  LANGUAGE. 

which  will  support  the  verdict.166     If  the  language  admits  of  a 
harmless  as  well  as  an  injurious  meaning,  which  is  the  meaning 

160  In  Burgess  v.  Boucher,  8.  Mod.  240,  it  is  said  that  after  verdict  the  court  will 
always  construe  the  words  to  support  the  verdict,  and  the  dictum  is  repeated  by 
StarMe  without  qualification.     (2  Starkie  on   Slander,   108.)     But  such  a  rule  as 
was  pointed  out  by  Best,  C.  J.,  in  Goldstein  v.  Foss,  6  B.  &  Cr.  154  ;  9  D.  <fe  R.  197  ; 
4  Bin°\  489 ;  Moo.  &  P.  402 ;  2  Y.  &  Jer.  146  would  practically  deprive  a  party 
of  the  right  to  move  in  arrest  of  judgment ;  and  see  Forbes  v.  King,  1  Bowl.  Pr. 
Cas.  6*72.     In  Ceely  v.  Hoskins  ( Cro.  Car.  509),  the  words  were,  "Thou  art  for- 
sworn in  a  court  of  record,  and  that  I  will  prove."     It  was  contended  after  ver- 
dict for  plaintiff  that  the  action  would  not  lie,  because  it  was  not  said  in  what 
court  of  record  he  was  forsworn,  nor  that  he  was  forsworn  in  giving  any   evi- 
dence to  a  jury  ;  that  it  might  be  intended  only  that  he  was  forsworn,  not  judi- 
cially, but  in  ordinary  discourse  in  some  court  of  record ;  held  the  words  must  be 
taken  as  an  accusation  of  perjury;  the  court  add  ;  to  say  such  an  one  is  a  mur- 
derer without  saying  whom  he  murdered,  or  when,  an  action  lies,  and  it  shall  not 
be  intended  that  he  was  a  murtherer  of  hares,  unless  such  foreign  intendment  be 
shown  or  discovered  in  pleading.     In  Baal\.  Baggerly  (Cro.  Car.  326),  the  words 
were,  "  Thou  hast  forged  a  privy  seal  and  a  commission  !   why  dost  thou  not 
break  open  thy  commission  ?  "  after  verdict  for  plaintiff  it  was  contended  that 
the  words  were  not  actionable,  but  by  the  court  being  found  guilty,  the  words 
are  to  be  intended  according  to  the  vulgar  interpretation,  that  the  king's  privy 
seal  was  meant,  the  counterfeiting  whereof  is  treason.     In  Somers  v.  House  (Holt, 
39),  the  words  were,  "You  are  a  rogue,  and  broke  open  a  house  at  Oxford;  and 
your  grandfather  was  forced  to  bring  over  £30  to  mend  the  breach ;"  after  verdict 
for  plaintiff,  it  was  urged  in  arrest  of  judgment  that  the  word  rogue  was  not 
actionable,  that  breaking  open  a  house  was  but  a  trespass,  and  mending  tfr  breach 
might  be  repairing;   but  the  court   held  the   contrary,  for  taking  all  the  words 
together,  one  who  heard  them  could  not  but  understand  a  felonious  breaking ;  the 
court  would  take  the  words  in  a  common  sense  according  to  the  vulgar  intend- 
ment of  the  bystanders.      In  Baler  v.  Fierce  (L'd  Rayni.  959  ;  6  Mod.  234;  Bolt, 
654),  the  words  were,  "  Baker  stole  my  boxwood,  and  I  will  prove  it."  .  After 
verdict  for  plaintiff,  it  was  urged  in  arrest  of  judgment,  that  the  words  mean 
wood  growing,  of  which  only  a  trespass  could  be  committed.      That  to  say  you 
are  a  thief,  and  have  stolen  my  timber,  or  my  apples,  or  my  hops,  is  not  action- 
able, for  it  imports  only  a  trespass  ;  but  the  court  ordered  judgment  for  the  plain- 
tiff, and  denied  the  authority  of  the  case  of  Mason  v.   Thompson  (Hutt.   38),  in 
which  the  words  "  I  charge  thee  with  felony  in  taking  forth  from  J.  D.'s  pocket, 
and  I  will  prove  it,"  were  held  not  actionable.     In  3  Salk.  325  ;  2  Vent.  172  ;  2 
Lev.  51  ;  2  Sir  T.  Jo.  235,  the  words  were  "  he  is  a  clipper  and  coiner  ;"  after 
verdict  for  plaintiff,  it  was  moved  in  arrest  of  judgment  that  it  was  not  a  charge 
of  clipping  and  coining  money,  but  held  a  clipping  and  coining  of  money  must 
be  intended.      Where  the  words  were  spoken  by  a  married  woman,  charging  a 
theft  of  her  goods,  to  support  a  verdict  it  was  held  that  she  meant  a  theft  of  her 
goods  before  marriage.    {Powell  v.  Plunkctt,  Cro.  Car.  52.) 


CONSTRUCTION   OF  LANGUAGE.  133 

to  be  attached  to  it  will  be  resolved  by  the  verdict.167  It  is  not 
sufficient  to  show  by  argument  that  the  language  will  admit  of 
some  other  meaning  than  that  which  obviously  the  jury  have 
attached  to  it,168  and  therefore,  after  verdict  for  plaintiff,  lan- 
guage which  admits  of  an  innocent  and  an  injurious  meaning  will 
be  construed  to  have  its  injurious  meaning.169  After  verdict  all 
averments  on  the  side  of  the  successful  party  which  were 
involved  in  the  issue  tried,  will  be  taken  to  have  been  duly 
proved  unless  the  contrary  appear  upon  the  record,170  and  thus 

1CT  Ford  v.  Primrose,  5  D.  &  Ry.  28V;  Giddins  v.  Merk,  4  Geo.  364;  CT  Con- 
ner v.  Lloyd,  2  Hudson  <fc  Br.  626  ;  Chapman  v.  Smith,  13  Johns.  78 ;  Sherwood  v. 
CAa.se,  11  Wend.  38. 

168  Woolnoth  v.  Meadoios,  5  East,  463  ;  Roberts  v.  Camden,  9  East,  93. 

169  «  -^7-orcjg  01.  signs  wni,  after  a  verdict  for  the  plaintiff,  be  considered  by  the 
courts  to  have  been  used  in  their  worst  sense."  (1  Starkie  on  Slander,  60,  repeated  • 
Heard  on  Libel,  §  173,  citing  Southee  v.  Denny,  1  Ex.  195  ;  Sloman  v.  Button,  10 
Bing.  402;  4  M.  &  Sc.  174;  Wakley  v.  Hea'ey,  7  Com.  B.  591;  Tomlinson  v. 
Brittlcbank,  4  B.  &  Adol.  630 ;  1  Nev.  &  M.  455  ;  Francis  v.  Boose,  3  M.  &  W. 
191;  Hughes  v.  Reese,  4  M.  &  W.  204;  Rowcliffe  v.  Edmonds,  7  M.  &  W.  12  ; 
Digby  v.  Thompson,  4  B.  &  Adol.  821  ;  1  Nev.  &  M.  485  ;  Daines  v.  Hartley,  3 
Ex.  200  ;  Read  v.  Ambridge,  6  C.  &  P.  308  ;  Shipley  v.  Todhunter,  7  C.  &  P.  680 ; 
Chaddock  v.  Briggs,  13  Mass.  248;  Goodrich  v.  Davis,  11  Mete.  473;  Brown  v. 
Lamherton,  2  Binney,  35  ;  Bloom  v.  Bloom,  5  Serg.  &  R.  391  ;  Cornelius  v.  Van 
Slyck,  21  Wend.  70  ;  Butterfield  v.  Buffum,  9  N.  Hamp.  156  ;  Hamilton  v.  Smith, 
2  Dev.  <fc  B.  274  ;  Hancock  v.  Stephens,  11  Hump.  509;  Goodrich  v.  Wool  colt,  3 
Cow.  231 ;  Walton  v.  Singleton,  7  Serg.  &  R.  451 ;  and  see  2?ccrs  v.  Story,  Kirby, 
12.) 

One  of  the  reports  commenced,  "  Wilful  and  corrupt  perjury;"  held  that, 
after  verdict,  this  must  be  taken  as  a  description  of  the  nature  of  the  charge,  not 
as  an  imputation,  by  the  publisher,  of  the  perjury  in  fact.  {Lewis  v.  Levy,  1 
Ellis,  B.  &  E.  537.) 

Publishing  in  writing  that  the  plaintiff  had  realized  the  fable  of  the  frozen 
snake  ;  after  verdict  for  jslaintiff,  the  court  refused  to  arrest  the  judgment,  as  the 
jury  might  have  understood  the  words  "  frozen  snake  "  to  impute  a  charge  of 
ingratitude  to  friends,  although  not  so  explained  by  innuendo.  {Hoare  v.  Silver- 
lock,  12  Ad.  &  Ell.  N.  S.  624.) 

ivc  Gales  v.  Bowker,  18  Verm.  (3  Washb.),  23  ;  Cass  v.  Anderson,  33  Verm.  (4 
Shaw),  182;  Hoylc  v.  Young,  1  Wash.  150;  Ramsey  v.  Elms,  3  Jur.  1189.  But 
nothing  more  will  be  presumed  after  verdict  than  is  necessary  to  support  the 
allegations.  {Sweetapple  v.  Jesse,  2  Nev.  &  M.  36;  5  B.  &  Adol.  27.)  Where 
the  words  taken  by  themselves  do  not  necessarily  import  a  charge  of  crime,  yet 
where  it  is  alleged  in  the  innuendo  that  the  defendant  meant  by  the  words  that 
the  act  was  maliciously  done,  they  will  be  taken,  after  verdict,  to  have  been  in- 


13-i  CONSTRUCTION   OF  LANGUAGE. 

after  verdict  for  plaintiff,  if  the  language  published  may  in  its 
ordinary  acceptation  and  without  the  aid  of  extrinsic  circum- 
stances be  reasonably  understood  as  having  an  actionable  mean- 
ing, judgment  will  not  be  arrested  upon  the  ground  that  the 
inducement  and  innuendoes  do  not  sufficiently  apply  the 
lano-uao-e  to  the  plaintiff,  or  because  the  innuendoes  in  so  far  as 
they  apply  the  language  to  the  plaintiff  are  unwarranted.171  If 
the  innuendoes  are  unwarranted  in  any  other  respect  it  is  a 
ground  for  arresting  the  judgment,  of  which  hereafter. 

§  144.  "We  will  here  give  some  few  additional  illustrations 
of  the  manner  in  which  the  courts  have  construed  certain  lan- 
guage ;  many  more  illustrations  will  be  found  in  the  next 
succeeding  chapter : 

a.  Adultery. — A  charge  of  violating  the  seventh  commandment 

held  not  to  import  a  charge  of  adultery.172 

b.  And — For. — A  distinction  has  been  taken  between  saying, 

Thou  art  a  thief,  for  thou  hast  stolen  such  a  thing,  as  a 
tree,  which  could  not  be  felony,  and  the  saying,  Thou  art 
a  thief,  and  hast  stolen  such  a  thing,  since  in  the  former 
case  the  subsequent  words  show  the  reason  of  calling  the 
plaintiff  a  thief,  and  that  no  felonious  imputation  was 
meant ;  but  in  the  latter,  the  action  lies  for  calling  him  a 
thief,  and  the  addition,  Thou  hast  stolen,  is  another  distinct 
sentence  by  itself,  and  not  the  reason  of  the  former  speech, 
nor  any  diminution  thereof.173  To  say  one  has  been  in  jail 
for  stealing,  in  some  cases  held  not  to  imply  that  the  party 
stole,  and  in  others  that  it  did.     In  the  latter  class  of  cases 

tended  to  import  such  a  charge.  ( TuttJe  v.  Bishop,  30  Conn.  80  ;  and  see  Ken- 
nedy v.  Gifford,  19  Wend.  256 ;  Beers  v.  Strong,  Kirby,  12 ;  Ramsey  v.  Elms,  3 
Jurist,  1189.) 

1.1  Wakley  v.  Healey,  18  Law  Jour.  (C.  P.)  241 ;  7  C.  B.  591. 

1.2  Farnsworth  v.  Storrs,  5  Cush.  412. 

^Cro.  Jac.  114;  Bull.  N.  V.  5;  Hob.  11,  106;  Cro.  Eliz.  857;  Browl.  2, 
GSdb.  241 ;  Hard.  7  ;  All.  31 ;  Sty.  66  ;  1  Starlde  on  Slander,  99.  This  distinc- 
tion was  referred  to  and  its  correctness  questioned  by  Holt,  Ch.  J.,  Bakery. 
Fierce,  6  Mod.  23,  where  it  is  said  and  and  for  have  the  same  meaning ;  and  see 
Lewis  v.  Acton,  Yelv.  34. 


CONSTRUCTION  OF  LANGUAGE.  135 

it  was  said  he  could  not  be  imprisoned  for  stealing  if  lie 
did  not  steal.174 

c.  Arson. — The  words  "  Thou  set  fire  to  those  buildings,  and 

thou  wilt  never  be  easy  till  thou  hast  told  of  it,"  does  not 
impute  arson.175  So  of  the  words  "  he  fired  his  house  ; " 176 
he  burnt  my  barn  ; 177  he  set  the  store  on  fire,  and  none  but 
him  ;178  T.  burned  the  mill  himself;179  but  the  words,  He 
set  fire  to  and  burnt  my  factory,  were  construed  to  mean  a 
wilful  burning  ; 180  and  the  words,  "  Public  opinion  says  you 
was  the  author  of  it  (firing  a  stable),  and  what  public  opin- 
ion says  I  believe  to  be  true,"  held  to  amount  to  a  charge 
of  arson  ;181  and  so  of  the  words,  "I  have  every  reason  to 
believe  he  burnt  the  barn,  and  I  believe  he  burnt  the 
barn."182 

d.  Bawdy  House. — Your  house  is  no  better  than  a  bawdy  house, 

is  equivalent  to  charging  that  the  party  kept  a  bawdy 
house ; 183  but  public  house,  or  house  of  ill  fame,  cannot  be 
so  construed.184  Whore  house  is  equivalent  to  bawdy 
house  or  house  of  ill  fame.183 

174  Yin.  Abr.,  Act.  for  Words,  P.  a.  2. 

176  Rigby  v.  Heron,  1  Jur.  558. 
"•  Anon.,  11  Mod.  220. 

177  Barhamv.  Nelhersoll,  Yelv.  21. 

178  McNab  v.  McGralh,  5  Up.  Can.  Q.  B.  Rep.  0.  S.  516. 
''•'■'  Tibbetts  v.  Gooding,  9  Gray  (Mass.),  254. 

K0  Tultle  v.  Bishop,  30  Conn.  80. 

1-1  Gage  v.  Shelton,  3  Rich.  242.  It  is  the  general  opinion  of  the  people  in 
J.'s  (plaintiff's)  neighborhood  that  he  burnt  C.'s  gin  house,  held  actionable. 
(  Waters  v.  Jones,  3  Port.  442.) 

Jk2  Logan  v.  Steele,  1  Bibb,  593 ;  I  believe  A.  (plaintiff)  burnt  the  camp 
ground,  held  actionable.  (Giddens  v.  Mirk,  4  Geo.  364.1  My  watch  was  stolen 
in  Polly  Miller's  bar;  I  have  reason  to  believe  that  Tina  M.  took  it  and  Polly 
Miller,  lier  mother,  concealed  it,  actionable.     {Miller  v.  Miller,  8  Johns.  174.) 

'"3  Hackle  v.  Reynolds,  1  C.  B.  (N.  S.)  114. 

M  Dodge  v.  Lacey,  2  Carter  (Ind.)  212.  House  of  ill  fame,  means  the  house  is 
one  of  bad  reputation,  not  that  it  is  a  bawdy  house,  unless  there  is  an  induce- 
ment that  the  defendant  was  in  the  habit  of  using  the  words  "  house  of  ill  fame," 
to  convey  the  idea  of  "  bawdy  house."     (Id.) 

lk°  Wright  v.  Paige,  36  Barb.  438. 


136  CONSTRUCTION  OF  LANGUAGE. 

e.  Bigamy. — The  words  "  lie  was  married  to  a  woman  (naming 
her)  and  kept  her  till  he  got  sick  of  her,  and  then  sent  her 
away,  having  all  this  time  two  wives,"  amount  to  a  charge 
of  bigamy.186 

f.  Blackleg. — The  term  blackleg  does  not  necessarily  mean  a 

cheating  gambler.187 

g.  Clipper. — "Where  the  words  were,  Thou  art  a  clipper  and  shall 

be  hanged  for  it,  or,  Thou  art  a  clipper  and  thy  neck  shall 
pay  for  it, — it  was  held  that  the  word  clipper  taken  in  con- 
nection with  the  words  which  followed  it,  meant  a  clip- 
ping of  money — a  felony.188 

h.  Conspiracy. — A  libel  which  was  alleged  to  be  concerning  a 
false  charge  of  felony,  made  through  feelings  of  religious 
bigotry,  by  the  plaintiff  against  one  D.  S.,  went  on  to  allege 
that  plaintiff  was  aided  in  making  said  charge  by  one  C. 
R.,  who  were  stated  to  "  have  been  for  some  time  back  em- 
ploying every  means  to  win  the  conlidence  of  this  young 
gentleman,  their  intended  victim  (meaning  thereby  that 
plaintiff  and  said  C.  R.  had  been  contriving  some  plan  to 
assail  the  character  of  said  D.  S.),  as  taking  him  on  country 
visits,  and  inviting  him  to  the  continent,  with  the  hope,  it  is 
alleged,  of  getting  him  altogether  to  themselves,  and  destroy- 
ing his  prospects  the  more  easily,  by  some  foul  charge,  which 
he  might  not  find  means  of  contradicting,  there  being  no 
one  else  of  the  company.  They  had  met  with  a  direct 
refusal,  it  seems,  to  their  invitation  to  the  continent,  and 
therefore,  rather  prematurely,  opened  their  present  plot 
(meaning  said  charge  of  felony).  Affidavits  are,  we  under- 
stand, shortly  to  be  laid  before  the  law  officers  of  the 
Crown,  charging  the  above  facts,  together  with  certain 
conversations  between  the  pair  of  Romanists,  who  have 
trained  this  ingenious  manoeuvre  (meaning  the  charge  of 

™  Parker  y.  Mender,  32  Verm.  (3  Shaw)  300. 

187  Barnett  v.  Allen,  3  Hurl.  &  N.  376. 

188  Walter  v.  Beaver,  3  Lev.  16G;  Cro.  Jac.  255,  276;   1  Lev.  155. 


CONSTRUCTION  OF  LANGUAGE.  137 

felony  aforesaid)."   Held  that  the  language  did  not  amount 
to  a  charge  of  conspiracy.189 

i.  Convicted  Felon. — Plaintiff  having  been  convicted  of  selling 
liquor  in  violation  of  law,  was  termed  in  a  printed  circu- 
lar a  "  convicted  felon  /  "  held  that  if  these  terms,  taken  in 
connection  with  the  context  and  the  evidence,  were  under- 
stood to  mean  only  an  offender  against  the  license  law, 
they  were  no  cause  of  action.190 

J.  Embracery. — Saying  that  A.,  on  a  certain  trial,  handed  papers 
to  one  of  the  jury,  and  that  he  ran  away,  or  the  judge 
would  have  put  him  in  prison  for  it, — or  that  he  handed 
papers  to  the  jury  to  influence  or  bribe  them, — imputes 
embracery,  and  is  actionable  per  se.m 

h.  Forgery. — The  term  forgery  does  not  necessarily  mean  a  felo- 
nious forgery,192  as  to  say  one  forged  words  and  sentiments 
for  Silas  Wright ; 193  and  to  deny  having  signed  a  note,  or 
authorized  his  name  being  indorsed,  does  not  import  a 
charge  of  forgery  ; 194  nor  does  a  charge,  if  you  have  any 
letters  from  them,  you  forged  them  ; 195  or,  I  never  put  my 
name  on  the  back  of  the  note,  but  he  must  have  done 
it.196  A  charge  of  altering  books  may  impute  forgery.197 
Exhibiting  a  note  and  saying,  "Do  you  think  it  is  G.'s 
handwriting,"  may  import  a  charge  of  forgery  ;198  and 
so  the  words,  "  He  altered  the  note  to  get  better  secu- 
rity, to  bind  me  to  pay  it.199    The  words,  I  would  give  five 


O'Connell  v.  Mansfield,  9  Irish  Law  R.  179. 

Perry  v.  Mann,  1  Rhode  Island,  203. 

Gibbs  v.  Dewey,  5  Cow.  503. 
52  Alexander  v.  Alexander,  9  Wend.  1-11.    See  §  167,  ])ost. 

Cramer  v.  Noonan,  4  Wis.  231. 

Andrews  v.  Wbodmansee,  15  Wend.  232. 

Mills  v.  Taylor,  3  Bibb,  469. 
'JG  Atkinson  v.  8  amnion,  2  Fost.  40. 

Gay  v.  Homer,  13  Pick.  535. 

Gorham  r.  Ives,  2  Wend.  534. 

Harmon  v.  Carrhirjton,  8  Wend.  488. 


138  CONSTRUCTION  OF  LANGUAGE. 

dollars  if  I  could  write  as  well  as  that, — I  never  signed 
the  note,200  do  not  necessarily  impute  forgery.  But  a  let- 
ter charging  plaintiff  with  having  subscribed  defendant's 
name  to  a  receipt  without  authority,  and  to  defraud  him 
out  of  the  money,  and  adding,  It  is  not  my  purpose  to  call 
hard  names — the  statute  fixes  the  name  and  punishment, 
imputes  forgery.201 

I.  Fornication. — To  allege  that  a  woman  is  not  a  decent 
woman,202  or  a  bad  character,  a  loose  character,208  or  has 
raised  a  family  of  children  to  a  negro,  does  not  amount  to  a 
charge  of  fornication  ;204  but  to  say  of  an  unmarried  woman 
she  had  a  child  and  buried  it  in  the  garden,  imputes  forni- 
cation.205 

m.  Kill — Killed — Killing. — The  words  kill,  killed,  and  killing, 
unexplained,  have  a  felonious  signification.206  The  words, 
"  I  think  the  business  ought  to  have  the  most  rigid  inquiry, 
for  he  murdered  his  first  wife,  that  is,  he  administered  im- 
properly medicines  to  her  for  a  certain  complaint,  which 
was  the  cause  of  her  death,"  after  verdict  for  plaintiff,  held 
actionable  as  imputing  a  charge  of  manslaughter.207 

n.  Knave. — Imports  dishonesty.208 

o.  Known. — Stating  plaintiff  is  about  to  commence  an  action, 
but  that  he  will  not  bring  it  to  trial  in  a  particular  county 

200  Andrews  v.  Woodmansec,  15  Wend.  232. 

201  Snyder  v.  Andrews,  6  Barb.  43. 

202  Dodge  v.  Lacey,  2  Carter  (Ind.),  212. 

203  Vanderlip  y.  Roe,  25  Penn.  St.  Rep.  (11  Harris),  82. 

204  Patterson  v.  Edwards,  2  Gilnian,  720. 

205  Worth  v.  Butler,  V  Blackf.  251.     See  §  172,  _po^. 

206  Carroll  v.  White,  33  Barb.  620;  Button  v.  Hayward,  8  Mod.  24;  Cooper  v. 
Smith,  Cro.  Jac.  423 ;  Hays  v.  Hays,  1  Hump.  (Tenn.)  402 ;  Taylor  v.  Casey, 
Minor  (Ala.),  258;  Heart  v.  Wilson,  10  Ser.  ifc  R.  44;  Johnson  v.  Robertson,  4 
Porter,  486;  Chandler  v.  Holloivay,  id.  18  ;  Edsall  v.  Russell,  5  Scott  X.  R.  801 ; 
2  Dowl.  N.  S.  614 ;  4  Man.  &  G.  1090. 

207  Ford  v.  Primrose,  5  Dowl.  &  R.  287.     See  §  168,  post. 

208  Harding  v.  Brooks,  5  Pick.  244. 


CONSTRUCTION  OF  LANGUAGE.  139 

because  he  is  hnown  there,  amounts  to  a  charge  that  the 
plaintiff  is  in  bad  repute  in  that  county.209 

p.  Larceny. — The  words,  A  man  that  would  do  that  would  steal, 
do  not  impute  a  larceny  ; 210  but  to  say  one  was  whipped 
for  stealing  hogs,  does.211  You  will  steal,  imputes  a  charge 
of  larceny.212  The  words  "  he  is  mighty  smart  after 
night,"  and  "  put  him  in  the  dark  and  he  would  get  it 
all,"  spoken  with  reference  to  a  dispute  which  existed 
between  plaintiff  and  defendant,  relative  to  the  division  of 
a  certain  tan-yard ;  held  not  to  impute  the  crime  of  lar- 
ceny, and  not  actionable.213  I  have  reason  to  suppose  that 
many  of  the  flowers  of  which  I  have  been  robbed  are 
growing  on  your  premises,  held  to  amount  to  a  charge  of 
larceny.214 

q.  Liar. — The  words  "  this  is  not  the  first  time  the  idea  of  false- 
hood and  B.  (plaintiff)  have  been  associated  in  the  minds 
of  many  honest  men,"  imports  that  B.  is  a  liar.213 

r.  Made  away  with. — A  charge  of  making  away  with  does  not 
amount  to  a  charge  of  larceny.216 

5.  Murder. — To  say  one  is  guilty  of  the  death  of  another  imports 
a  charge  of  murder.  The  word  guilty  implies  a  malicious 
intent,  and  can  be  applied  only  to  something  which  is 
universally  allowed  to  be  a  crime.  But  to  say  one  was 
the  cause  of  another's  death  does  not  import  a  crime,  for  a 


209  Cooper  v.  Greely,  1  Denio,  347. 

210  Stees  v.  Kemhle,  27  Pcnn.  State  R.  112;  and  see  Stolen,  p.  142,  post. 

211  Holly  v.  Burgess,  9  Ala.  728. 

212  Cornelius  v.  Van  Shjck,  21  Wend.  70. 

213  Eirksey  v.  Fike,  29  Ala.  206. 

214  Williams  v.  Gardiner,  1  M.  &  W.  245 ;  and  see  note  145,  ante. 

215  Brooks  v.  Bemiss,  8  Johns.  455. 

210  The  words,  "  Uncle  Daniel  must  settle  for  some  of  my  logs  he  has  made 
away  with,"  do  not  of  themselves  amount  to  a  charge  of  larceny.  (Brown  v. 
Brown,  2  Shep.  317.) 


140  CONSTRUCTION  OF  LANGUAGE. 

physician  may  be  the  cause  of  a  man's  death,  and  very 
innocently.217 

t.  Packing. — The  charge  of  "  packing  a  jury  "  imports  the  cor- 
rupt selection  of  a  jury.218 

u.  Perjury. — To  publish  a  direct  and  positive  contradiction  of 
what  a  witness,  at  a  certain  trial,  had  sworn  that  A.  had 
said ;  held,  not  to  amount  to  a  charge  of  perjury.219  Xor 
do  the  words,  Thou  wert  detected  of  perjury,  imply  being 
guilty  of  perjury.220  Words  charging  a  grand  juror 
with  having  "  forsworn  himself  by  neglecting  or  refus- 
ing to  present  an  offence  within  his  knowledge,"  do  not 
amount  to  a  charge  of  perjury  or  any  indictable  offence.221 
To  say  one  is  forsworn,  was  indicted  for  it,  and  com- 
pounded for  it,  imputes  perjury  ;  for  the  alleged  compound- 
ing is  equivalent  to  a  confession  of  the  indictment  being 
true.222  And  to  say,  Thou  art  forsworn,  and  I  will  set 
thee  on  the  pillory,  or  I  will  have  his  ears  cropt,  imply 
perjury.223  Loss  of  life  was  occasioned  by  the  collision  of 
two  steamboats.  An  inquest  was  afterwards  held,  and  a 
person  named  Granger,  who  was  on  board  of  one  of  the 
steamboats  at  the  time  of  the  accident,  gave  his  evidence. 
The  defendant,  in  giving  an  account  of  the  accident  and 
inquest,  stated  —  "  Had  requisite  means  been  employed, 
the  lives  of  the  two  children  might  have  been  saved,  in 
spite  of  the  story  of  Mr.  Granger,  who  swore  through  thick 
and  thin,  and  who,  although  asleep  at  the  moment  of  the 

217  Peake  v.  Oldham,  Cowp.  275. 

218  Mix  v.  Woodward,  12  Conn.  2(32. 

219  Steele  v.  Southwick,  9  Johns.  214. 

220  Vin.  Ab.,  Act.  for  Words,  P.  a.  21.  The  words,  Thou  didst  take  a  false  oath 
before  Justice  Scawen,  may  mean  not  a  justice  of  the  peace  named  Scawen,  but 
one  named  Justice  Scawen.     (GarnettY.  Berry,  3  Lev.  166),  note  680, post. 

221  McAnnnlly  v.  Williams,  3  Sneed,  26. 

222  Gilberd  v.  Rodd,  3  Bulst.  304. 

23  Williams  v.  Bickerton,  Het.  63  ;  Vin.  Ab.,  Act.  for  Words,  F.  a.  11.  I  could 
prove  J.  S.  perjured,  if  I  would  imply  that  J.  S.  committed  perjury.  (Id.) 


CONSTRUCTION   OF  LANGUAGE.  Ill 

accident,  had  yet  sufficient  time  to  dress  himself  and  assist 
his  wife : "  held,  that  the  language  did  not  charge  Gran- 
ger with  perjury.224  The  following  was  published  by  A. : 
"  Charge  4.  Refusing  to  correct  G.  C.  in  his  statement  as 
a  witness  before  Esq.  B.,  when  I  believe  he,  J.  C,  knew 
his,  G.'s,  statement  was  not  true."  Held,  that  this  writ- 
ing, when  shown  by  proper  innuendos  to  have  been  applied 
by  A.  to  the  testimony  of  G.  C,  on  the  trial  of  a  cause, 
imputed  perjury  to  G.  C,  and  was  actionable.225 

v.  Pilfering. — The  term  pilfering  imports  a  crime.226 

w.  Plundered. — The  term  plundered  does  not  import  a  felo- 
nious taking.227 

x.  Poison. — Saying  of  a  surgeon  that  he  did  poison  the  wound 
of  his  patient,  may  mean  that  he  poisoned  the  wound  to 
cure  it.  But  if  it  be  charged  that  he  poisoned  the  wound 
to  get  money,  that  is  different.223 

y.  Prostitute. — She  is  a  bad  girl  and  unworthy  to  be  employed, 
will  not  support  an  innuendo,  a  prostitute.229  "  If  I  am 
not  misinformed  she  is  a  prostitute,"  is  the  same  as  saying 
she  is  a  prostitute.230 

z.  Pobljed — Robbing. — The  prima  facie  meaning  of  robbed  is  to 
impute  a  crime,  an  unlawful  taking;231  but  the  words,  You 
have  robbed  me  of  one  shilling  tan  money,  amount  only 
to  a  charge  of  embezzlement.232     Hobbing  is  a  word  of  an 


-'  Reg.  v.  Marshall,  2  Jur.  254 ;  and  see  note  147,  ante. 

--•''  Coombs  v.  Rose,  8  Blackf.  155. 

228  Beckett  v.  Sterrcit,  4  Blackf.  499  ;  contra,  see  Carter  v.  Andrews,  16  Pick.  1. 

227  Carter  x.  Andrews,  16  Pick.  1. 

228  Vin.  Abr.,  Act.  for  Words,  R.  a.  10,  40. 

229  Snell  v.  Snow,  13  Met.  278. 

230  Treat  v.  Browning,  4  Conn.  408. 

231  TomUnson  v.  Brittlebanh,  1  Nev.  &  M.  45.',;  Jones  v.  Chapman,  5  Blackf. 
88  ;  Heard  on  Libel,  §  38. 

232  Lay  v.  Robinson,  1  Ad.  &  El.  554. 


142  CONSTRUCTION   OF  LANGUAGE. 

uncertain  signification.233  The  words,  "He  robbed  the 
treasury  and  bought  a  farm  with  it,  were  held  not  to 
impute  felony.234 

a.  a.  Shaving  Purposes. — Shaving  as  applied  to    promissory 

notes  means  buying  notes  at  a  discount,  beyond  the  debt 
and  interest,  which  is  neither  dishonorable  nor  discredit- 
able.235 

b.  b.  Steal — Stolen. — The  natural  and  obvious  meaning  of  steal  is 

a  felonious  taking  or  larceny.236  The  term  stolen  imputes  a 
larceny.237  Stealing  unexplained,  ex  vi  termini,  imports 
felony.238  Stealing  and  feloniously  stealing  are  not  the 
same  ;  in  common  parlance,  stealing  does  not  always  im- 
port felony.239  If  the  article  alleged  to  have  been  stolen  is 
of  the  kind  of  which  felony  can  be  committed,  the  term 
steal  or  stolen  imputes  a  larceny,  otherwise  if  the  article 
alleged  to  have  been  stolen  could  not  be  the  subject  of  a 
felony.240  Thus  it  has  been  held  not  actionable  to  say, 
You  stole  my  wood,241  or  my  apples ; 243  or  a  load  of  hop- 
poles  ; m  or  a  tree ;  ^  or  a  dog  ; m  or  a  bee-tree ; 216  or  wild 
bees ; 247  or  a  sable  caught  in  a  trap ; ns  or  marl,  earth,  or 


233  Palmer  v.  Edwards,  Rep.  of  Cas.  of  Prac.  in  C.  P.  160. 

234  Allen  v.  Hillman,  12  Pick.  101.     See  §  170,  post. 

235  Stone  v.  Cooper,  2  Denio,  293. 

236  Bunnell  v.  Fiske,  11  Mete.  551.     See  §  170,  post. 

237  Bui-bank  v.  Horn,  39  Maine  (4  Heath),  233 ;   Coleman  v.  Playsfcd,  36  Barb. 
26;  contra,  Bunnell  v.  Fish,  11  Mete.  551 ;  St.  Martin  v.  Besnoijer,  1  Min.  156. 

238  Powell,  J.,  Baler  v.  Pierce,  6  Mod.  23. 

239  Holt,  Ch.  J.,  Baker  v.  Pierce,  6  Mod.  23. 

240  Cock  v.  Weatherby,  5  Sme.  &  M.  333.     See  note  143,  ante. 

241  Meaning  standing  timber.     Robins  v.  Hildredon,  Cro.  Jac.  65 ;  Idol  v.  Jones, 
2  Dev.  162  ;  Heard  on  Libel,  37,  note  3  ;  contra,  Phillips  v.  Barber,  7  Wend.  489. 

212  Clark  v.  Gilbert,  Hob.  331. 

243  Guihlcrshw  v.  Ward,  Cro.  Eliz.  225;  Dexter  v.  Tabcr,  12  Johns.  239. 

214  Cook  v.  Gilbert,  Hob.  77.     See  Bryan  v.  Wikes,  Cro.  Car.  572. 

245  Finellay  v.  Bear,  8  Serg.  &  R.  571. 

246  Cock  v.  Weatherby,  5  Sme.  &  M.  333. 

247  Wall  is  v.  Mease,  3  Binn.  546  ;   Gillet  v.  Jlason,  7  Johns.  16. 

248  Norton  v.  Ladd,  5  N.  Hamp.  203. 


CONSTRUCTION  OF   LANGUAGE.  143 

fnrze  ;249  because  felony  cannot  be  committed  of  such  things. 
A  charge  of  having  stolen  boards,250  or  "my  box-wood,"251 
held  to  impute  a  larceny ;  and  a  charge  of  stealing  the 
property  of  A.,  deceased,  imports  a  larceny  from  the  per- 
sonal representatives  of  A.252  He  will  steal,  and  I  can 
prove  it,  is  equivalent  to  saying  he  had  stolen ; 253  and  to 
allege,  I  will  venture  anything  he  has  stolen  the  book,  is 
equivalent  to  a  charge  of  stealing  the  book.254  To  say, 
You  are  as  bad  as  your  wife  when  she  stole  my  cushion,  is 
not  a  charge  of  stealing,  without  an  averment  that  the 
wife  had  committed  felony.255 

c.  c.  Suffer. — To  suffer,  held  to  import  suffer  death,  as  where 

the  defendant  said,  "  I  will  make  you  suffer  for  a  witch, 
it  was  held  to  mean  suffer  death  for  a  witch.256 

d.  d.  Taken. — "Words  which  charge  the  taking  of  the  personal 

property  of  another,  may  be  slanderous  or  not,  according 
to  circumstances.257  Ordinarily,  taken  is  not  equivalent  to 
stolen;258  but  where  the  words  were,  I  have  lost  a  calf-skin. 


240  Ogden  v.  Riley,  2  Green,  186;   Clarke  v.  Gilbert,  Hob.  331. 

260  Burbank  v.  Horn,  39  Maine  (4  Heath),  233. 

261  After  verdict  for  plaintiff.     Baker  v.  Pierce,  6  Mod.  23. 

262  Bash  v.  Sommcr,  20  Penn.  St.  R.  159. 

263  Cornelius  v.  Van  Slyck,  21  Wend.  70. 

254  Nye  v.  Otis,  8  Mass.  122. 

255  Upton  v.  Pinfold,  Comyn's  R.  268.  The  words,  "  I  expect  Murphy  will 
have  plenty  of  bacon  to  sell,  as  he  has  killed  some  of  my  hogs,"  after  verdict  for 
plaintiff,  were  held  to  amount  to  a  charge  of  hog-stealing.  (Murphy  v.  Antley,  2 
Boston  Monthly  Law  Rep.  N.  S.  520.)  R.  S.  was  attainted  of  felony,  and  defendant 
said,  You  (plaintiff)  have  done  as  ill  and  worse  ;  it  will  not  cost  you  as  much  to 
be  quit  as  it  cost  him.  Court  doubted  if  actionable.  (Smith's  Case,  Cro.  Eliz. 
31.) 

256  Stephens  v.  Corbcn,  3  Lev.  394. 

257  Watson  v.  Nicholas,  6  Hump.  174. 

368  Robertson  v.  Lea,  1  Stew.  141 ;  Coleman  v.  Playstead,  36  Barb.  26.  The 
words,  Thou  hast  picked  my  pocket,  and  taken  away  ten  shillings,  held  not 
actionable,  although  the  charge  of  picking  the  pocket  without  more  would 
be.      (Hurafries'  Case,  cited    Godb.    287.)        Taking    away  implies    a    lawful 


144  CONSTRUCTION  OF  LANGUAGE. 

*     *     Born  man  must  have  taken  it,  they  were  held  to 
impute  a  larceny.259 

e.  e.  Thief.  — To  call  one  thief  is  not  actionable  unless  it  is  in- 
tended to  impute  to  him  a  felony.260  Unexplained,  it  will  be 
construed  in  a  felonious  sense,261  but  subject  to  explanation 
by  the  context.262  To  say  of  one,  he  is  a  thieving  person, 
•is  the  same  as  saying  he  is  a  thief.263 

f.f.  Tfireaterdng  Letter's. — A  charge  of  sending  threatening 
letters,  and  that  the  plaintiff  had  been  indicted  therefor, 
must  mean  that  they  were  unlawful  threatening  letters.264 

g.  g.    Unnatural  Offence. — To  allege  that  one  has  been  with  a 


taking.     (Foster  x.  Browning,  Cro.  Jac.  688,  pi.  2  ;  Wilks'   Case,  Vin.  Abr.,  Act. 
for  Words,  R.  a.  3);  see  Dottarer  x.  Bushey,  16  Perm.  St.  Rep.  204. 

209  Bomman  x.  Boyer,  3  Binn.  515.  He  is  a  thief,  for  he  hath  stolen  corn 
from  Mr.  Kay,  held  actionable  (Smith  x.  Ward,  Cro.  Jac.  6*73),  for  corn  threshed 
and  not  in  the  sheaf  shall  be  intended ;  but  if  the  words  had  been  hath  taken 
away  instead  of  hath  stolen,  no  action  would  lie — a  lawful  taking  would  be  intended. 
(Foster  v.  Browning,  Cro.  Jac.  688,  pi.  2.)  Thou  art  as  arrant  a  thief  as  any  in 
England,  for  thou  hast  broken  up  J.'s  chest  and  taken  away  £40 ;  not  actionable. 
(Id.)  Thou  art  a  thief,  for  thou  takest  my  beasts  by  reason  of  an  execution,  and 
I  will  hang  thee.     (Wilks'  Case,  Vin.  Ab.,  Act.  for  Words,  R.  a.  3.) 

260  Brite  v.  Gill,  2  Monroe  (Ky.),  66;   Quinn  x.  O'Gara,  2  E.  D.  Smith,  3S8. 

261  Penfold  x.  Westeote,  2  New  Rep.  335;  Curtis  x.  Curtis,  10  Bing.  477; 
Fisher  x.  Rotereau,  2  M'Cord,  189 ;  Dudley  x.  Robinson,  2  Iredell,  141.  The 
words,  He  is  a  thief  and  a  liar,  and  I  can  prove  it,  import  a  charge  of  larceny 
and  are  actionable.     (Robinson  x.  Eeyscr,  2  Foster  (N.  Hamp.),  323.) 

262  Thompson  x.  Bernard,  1  Camp.  48 ;  Christie  x.  Powell,  Peake's  Cas.  4 ; 
McKee  x.  lngalls,  4  Scam.  30;  Ogden  x.  Riley,  2  Green,  186;  Vin.  Abr.,  Actions 
for  Words,  G.  «.  1,  2.  To  say,  "  Thou  art  as  very  a  thief  as  any  in  Warwick 
gaol,"  no  thief  being  then  in  the  gaol,  would  not  be  actionable,  but  if  a  thief  is 
in  the  gaol  at  the  time,  the  words  would  be  actionable.     (Fenner,  J.,  Bulst.  40.) 

203  Alley  x.  JVeely,  5  Blackf.  200. 

264  Harvey  x.  French,  1  Cr.  &  M.  1,  affirmed  2  M.  &  Sc.  591.  "Threatening 
letters.  The  grand  jury  have  returned  a  true  bill  against  a  gentleman  named 
French,"  construed  to  mean  that  the  grand  jury  had  found  a  true  bill  against 
French  for  sending  threatening  letters,  but  that  the  words  would  not  bear  the 
meaning  that  French  had  sent  threatening  letters  to  extort  money.     (Id.) 


CONSTRUCTION  OF  LANGUAGE.  145 

beast,265  was  seen  ravishing  a  cow,  amounts  to  a  charge  of 
buggery ; 266  but  an  allegation  that  one  was  seen  a  foul  of 
a  cow,  or  "  with  a  heifer," 267  do  not  amount  to  a  charge 
of  buggery.  To  say  of  one,  his  character  is  infamous,  he 
would  be  a  disgrace  to  any  society ;  I  will  publish  his  in- 
famy ;  delicacy  forbids  me  briuging  a  direct  charge,  but 
it  was  a  male  child  who  complained  to  me  ;  held  to  impute 
unnatural  practices  without  an  innuendo.268 

h.  h.    Whore. — To  assert  that  "  A.  is  a  whore,  or  else  she  would 


never  ride  with  B.,"  is  to  assert  that  A.  is  a  whore, 


'■>«! 


i.  i. — To  say,  there  is  strong  reason  to  believe,270  or  there  is  a 
rumor,271  or  if  report  be  true,272  a  certain  fact  occurred,  is 
equivalent  to  an  allegation  that  such  fact  occurred;  and 
so  to  say,  I  would  venture  anything,273  or  public  opinion 
says  so,  and  what  public  opinion  says  I  believe  to  be  true,274 
or  I  have  every  reason  to  believe,275  is  equivalent  to  a  posi- 
tive allegation. 

j.  j. — To  say  of  one,  he  is  thought  no  more  of  than  a  horse 
thief  and  a  counterfeiter,  is  to  call  him  a  horse  thief  and 
a  counterfeiter ; 276  and  when  it  is  said  of  one,  he  has  com- 
mitted an  act  for  which  he  could  be  transported,  it  must 
be  understood  he  has  been  guilty  of  a  crime  punishable  by 
transportation.277 

h.  h. — To  charge,  he  has  broken  open  my  letters  in  the  post- 
office,  do  not  import  an  unlawful  breaking  open.278 

265  Woolcott  v.  Goodrich,  5  Cow.  714. 

286  Harper  v.  Belph,  3  Ind.  225. 

207  Id.  ;  Johnson  v.  Hedge,  6  Up.  Can.  Q.  B.  Rep.  337. 

288  Woolnoth  v.  Meadows,  5  East,  463.     See  note  137  on  page  118,  ante. 

269  True  v.  Plumley,  36  Maine,  466. 

2,0  Turner  v.  Merryweather,  12  Law  Times,  474;  7  C.  B.  251. 

271  Kelly  v.  Dillon,  5  Porter  (Ind.),  426. 

272  Smith  v.  Stewart,  5  Barr,  372. 
873  Nye  v.  Otis,  8  Mass.  122. 

274  Gage  v.  Shelton,  3  Rich.  242;  and  see  note  181,  ante. 

2'5  Logan  v.  Steele,  1  Bibb,  593  ;  and  see  note  182,  ante. 

278  Nelson  v.  Musgrave,    10  Mo.  R.  649. 

277  Curtis  v.  Curtis,  4  Mo.  <fc  Si"  337 ;  10  Bing.  477. 

218  McCaen  v.  Ludlam,  2  Har.  12.  10 


14G  CONSTRUCTION  OF  LANGUAGE. 

I,  I, — Thou  canst  not  read  a  declaration,  construed  to  mean  from 
ignorance,  not  blindness.279 

m%  m# — The  words  "  we  again  assert  the  cases  formerly  put  by 
us  on  record,  we  assert  them  against  [the  plaintiff]  ;  we 
again  assert  they  are  such  as  no  gentleman  or  honest  man 
would  resort  to."  Construed  not  to  be  a  mere  denial  of 
some  assertion  made  by  plaintiff,  but  as  an  accusation 
against  the  plaintiff.280 

n.  n. — "He  was  an  United  Irishman,  and  got  the  money  of  the 
United  Irishmen  into  his  own  hands  and  ran  away  with  it," 
imputes  a  breach  of  trust,  not  a  felony,  and  not  action- 
able.281 

§  145.  "What  allegations  are  divisible  ?  One  rule  whereby 
to  test  whether  a  charge  is  divisible  or  not,  is  to  inquire  if  the 
measure  of  damages  would  be  different  for  the  whole  or  for  a 
part;  and  if  it  would,  then  the  charge  is  divisible,  and  part 
may  be  justified.282  Another  rule  would  be  to  inquire  if  a  part 
of  the  charge  would  sustain  an  action.  Where  the  charge  was 
that  the  plaintiff,  a  proctor,  had  been  suspended  three  times  for 
extortion,  held  divisible,  and  that  the  defendant  might  justify 
as  to  one  suspension.283  Where  the  alleged  defamatory  matter 
professed  to  give  a  report  on  an  election  petition,  and  com- 
mented on  a  party  bail  for  one  of  the  petitioners,  and  stated 
"  he  is  hired  for  the  occasion,"  held  divisible.284  The  charge 
was  acts  of  barbarity  to  a  horse,  and  "  beating  out  one  of  his 
eyes,  and  that  plaintiff  had  ordered  the  person  having  charge  of 
the  horse,  not  to  let  any  one  see  it,"  held  divisible.283  So  of  the 
words ;  Ware  hawk,  you  must  take  care  of  yourselves  there, 


279  Powell  v.  Jones,  1  Lev.  297. 

280  Hughes  v.  Rees,  4M.&  W.  204. 

281  McClurg  v.  Ross,  5  Binn.  218;    and  see  Caldwell  v.  Abbey,  Hardin,  529; 
Huron  v.  Smith,  4  B.  Monr.  385. 

2e2  Clarkson  v.  Lawson,   6  Bing.  587;    Cooper  v.  Lawson,   1  Teir.  &  D.  15  > 
Churchill  v.  Hunt,  2  B.  &  A.  G85. 

283  Clarkson  v.  Lawson,  6  Bing.  587. 

284  Cooper  v.  Lawson,  1  Perr.  &  I).  15. 

286  Weaver  v.  Lloyd,  2  B.  &  Cr.  678  ;  4  D.  &  R.  2S0. 


CONSTRUCTION  OF  LANGUAGE.  147 

mind  what  you  are  about ; 286  and  where  the  charge  was  that 
plaintiff  had  killed  his  adversary  in  a  duel,  and  that  a  portion 
of  the  night  preceding  the  duel  was  spent  in  practicing  with  a 
pistol,  held  to  be  divisible  allegations  ;287  and  where  the  charge 
was  that  the  plaintiff  had,  by  furious  driving,  caused  the  death 
of  a  party  and  then  commented  in  terms  held  to  be  actionable 
on  the  fact  of  the  plaintiff,  on  the  same  -evening,  attending  a 
public  ball,  held  that  the  charges  were  divisible ; 288  so  of  the 
words,  she  is  a  forsworn  whore  and  a  perjured  whore,289  and 
Thou  are  a  roguish  knave  and  a  thief.290  "Where  the  charge  was 
that  plaintiff  was  in  prison  and  unable  to  pay  his  rent,  and  a 
mere  man  of  straw,  held  not  divisible,  but  one  charge  of  insol- 
vency.291 Allegations  of  time,  and  space,  and  number,  are 
divisible.292 


see  orpWOOd  v.  Barkes,  4  Bing.  261 ;  S.  C.  sub.  nom.  Orpwoodv.  Parkes,  12 
Moore,  492. 

257  Helsham  v.  Blackwood,  11  C.  B.  Ill ;  5  Eng.  Law  &  Eq.  R.  409. 
2*3  Churchill  v.  Hunt,  2  B.  &  A.  685;  1  Chit.  480. 
269  Wales  v.  Norton,  Hard.  7. 

290  Bailey  v.  Maynard,  2  Bulst.  134. 

291  Eaton  v.  Johns,  1  Dowl.  Pr.  C.  N.  S.  602. 

232  Monkman  v.  Shepherdson,  3  Perr.  &  D.  182  ;  11  Ad.  &  El.  411 ;  so  said  in 
argument,  Page  v.  Hatchett,  6  Law  Times,  218 ;  and  as  to  divisible  allegations,  see 
McGregor  v.  Gregory,  2  Dowl.  Pr.  C.  N.  S.769;  11  M.  &  W.  289;  Nelson  v. 
Patrick,  3  C.  B.  772 ;  Mountney  v.  Watton,  2  B.  &  Ad.  673 ;  Tapley  v.  Wain- 
vrright,  5B.&  Adol.  395,  cited,  Dunckle  v.  Wiles,  6  Barb.  523  ;  Vessey  v.  Pike,  3 
C.  &  P.  512  ;  Berry  v.  Adamson,  2  C.  <fe  P.  503  ;  0 '  Connell  v.  Mansfield,  9  Ir.  Law 
R.  179;  Edwards  v.  Bell,  1  Bing.  403  ;  Lewis  v.  Walter,  4  Dowl.  &  R.  810;  3  B. 
&  Cr.  138;  Johns  v.  Giltings,  Cro.  Eliz.  239;  Vin.  Abr.  Act.  for  Words,  F.  a.  43 ; 
Heard  on  Libel,  286,  note  2. 


CHAPTER  VIII. 

WHAT   LANGUAGE   IS    ACTIONABLE. 

Language  must  be  such  as  does  or  does  not  occasion  damage. 
What  is  meant  by  actionable  per  se,  and  actionable  by 
reason  of  special  damage.  What  language  concerning  a 
person  as  such,  published  orally,  is  actionable  per  se. 
What  language  concerning  a  person  as  such,  published  in 
writing,  is  actionable  per  se.  What  language  concerning 
one  in  an  acquired  capacity,  is  actionable  per  se.  What 
language  is  actionable  by  reason  of  special  damage.  What 
language  concerning  the  affairs  of  a  person,  his  property 
or  his  title  thereto,  is  actionable. 

§  146.  All  language  concerning  a  person  or  his  affairs, 
which,  as  a  necessary  or  natural  and  proximate  consequence, 
occasions  him  pecuniary  loss,  is  prima  facie  actionable  (§§  57, 
59,  70).  Language  must  be  either  (1)  such  as  necessarily,  in 
fact,  or  by  a  presumption  of  evidence,  occasions  damage  to  him 
whom  or  whose  affairs  it  is  concerning,  or  (2)  such  as  does  not 
necessarily,  or  as  a  necessary  consequence,  but  does  by  a  natural 
and  proximate  consequence,  occasion  damage  to  him  whom  or 
whose  affairs  it  is  concerning,  or  (3)  such  as  neither  as  a  neces- 
sary nor  as  a  natural  and  proximate  consequence  occasions 
damage  to  him  whom  or  whose  affairs  it  is  concerning.293  The 
loss  which  ensues  asa  "  necessary  consequence"  is  termed  dam- 
age ;  the  loss  which  ensues  asa  "  natural  and  proximate  conse- 
sequence"  is  termed  "  special  damage.''''  One  and  the  same  set 
of  words  may  both  necessarily  occasion  damage  and  also  occa- 
sion damage  as  a  natural  consequence. 

293  In  the  jurisprudence  of  Louisiana,  a  distinction  is  not  made  between  words 
actionable  and  words  not  actionable,  as  the  basis  of  damages  in  a  suit  for  slander, 
where  no  special  damages  are  proved.     (Fcray  v.  Foote,  12  La.  Ann.  894.) 


WHAT   LANGUAGE  IS   ACTIONABLE.  149 

§  147.  Language  of  the  first  of  these  classes  is  commonly- 
termed  libellous  j^t*  se,  or  actionable  per  se,  because  its  publica- 
tion confers  a  prima  facie  right  of  action,  and  is  prima  facie  a 
wrong  without  any  .evidence  of  damage  other  than  that  which 
is  implied  or  presumed  from  the  fact  of  publication.  Prob- 
ably language  of  this  class  might  more  correctly  be  termed 
injurious  per  se,  or  language  which  imports  damage. 

§  148.  The  publication  of  language  of  the  second  of  these 
classes  does  not,  per  se,  confer  a  prima  facie  right  of  action, 
and  is  not,  per  se,  a  prima  facie  wrong.  It  confers  a  right  of 
action  only  in  those  cases  in  which,  as  a  natural  and  proximate 
consequence  of  the  publication-,  loss  (special  damage)  has  in 
fact  ensued  to  him  whom  or  whose  aifairs  the  lanjmao-e  was 
concerning. 

§  149.  The  publication  of  language  of  the  third  of  these 
classes  cannot  in  any  event  amount  to  a  wrong,  and  cannot  in 
any  event  confer  a  right  of  action. 

§  150.  We  attempted  to  explain  in  Chapter  IV.,  that  pecun- 
iary loss,  actual  or  presumed,  is  the  gist  of  the  action  for  slan- 
der or  libel,  and  we  stated  (pp.  55,  56)  the  basis,  as  we  suppose, 
of  the  distinction  between  words  actionable  per  se  and  words 
only  actionable  by  reason  of  special  damage,  to  consist  solely  of 
a  rule  of  evidence;  the  rule  by  which  courts  decide  what 
words294  shall  be  considered  by  their  publication  necessarily  to 
occasion  pecuniary  loss  or  damage.  The  courts,  while  exercis- 
ing this  power,  have  failed  to  promulgate  a  formula  which  can 
be  applied  with  any  degree  of  certainty,  to  distinguish  the  cases 
in  which  damage  is  necessarily  implied,  from  the  cases  in  which 
no  such  implication  occurs,  and  in  which  to  give  a  right  of 
action  special  damage  must  be  proved. 

§  151.  As  the  injurious,  or  presumed  injurious  eifect  of  lan- 
guage depends  upon  whether  (1)  the  language  concerns  a  per- 

294  Words  mean  written  or  spoken  words  (Minter  v.  Slcvart,  2  How.  (Mis.) 
183),  and  an  action  for  written  slander  may  be  an  action  for  "  slanderous  words" 
within  the  Vermont  Judiciary  Act  (Parsons  v.  Young,  2  Verm.  434),  but  see 
note  131,  ante. 


150  WHAT   LANGUAGE  IS  ACTIONABLE. 

son  or  a  thing  (2)  or  the  person  as  such  or  in  some  acquired 
capacity,  or  (3)  in  certain  cases,  whether  the  language  be  pub- 
lished orally  or  by  writing,  it  will  be  necessary  to  consider  the 
topic  of  actionable  language  under  the  following  heads  : 

I. — "What  language  concerning  a  person,  as  such,  published 
orally,  is  actionable  per  se. 

II. — What  language  concerning  a  person,  as  such,  published 
in  writing,  is  actionable  per  se. 

III. — What  language  concerning  one  in  an  acquired  capacity 
or  special  character,  as  in  a  business,  profession,  or  office,  or 
as  partner,  or  as  heir  at  law,  is  actionable  per  se. 

IV. — What  language  is  actionable  by  reason  of  special  dam- 
age. 

V. — What  language  concerning  things,  as  the  affairs  of  a  per- 
son, his  property,  or  his  title  thereto,  is  actionable. 

§  152.  What  language  concerning  a  person,  as  such,  pub- 
lished orally,  is  actionable  per  se  f  Although  it  has  been  said 
that  "  The  law  of  England  defines  with  much  greater  distinct- 
ness than  is  usually  found  in  other  codes,  the  limits  of  the  civil 
action  for  oral  slander  in  the  absence  of  special  damage,"295  it 
is  nevertheless  true  that  "  There  is  not  perhaps  so  much  uncer- 
tainty in  the  law  upon  any  subject,  as  when  words  shall  be  in 
themselves  actionable."296  "The  line  of  demarcation  seems 
never  to  have  been  satisfactorily  defined,"297  and  is  "  more  satis- 
factorily determined  by  an  accurate  application  of  the  prin- 
ciples upon  which  actions  on  the  case  for  words  depend,  than  by 
a  reference  to  adjudged  cases,  especially  those  in  the  more  an- 
cient authors."298  The  diversity  of  opinion  as  to  what  words 
should  be  treated  as  imputing  damage,  or  actionable  per  se,  arose 
from  a  wavering  in  the  minds  of  the  judges  between  two  oppo- 


295  Prelim.  Discourse  to  Starkie  on  Slander,  XXX.  (30),  note  v. 
298  Spencer,  J.,  Brooker  v.  Coffin,  5  Johns.  192. 

297  Borthwick  on  Libel,  5 ;  Lord  Holt  said  it  was  not  worth_ while  to  be  learned 
on  the  subject.     Baker  v.  Pierce,  6  Mod.  24. 

298  1  Comyn's  Dig.  273,  note,  4th  edit. 


WHAT   LANGUAGE   IS   ACTIONABLE.  151 

site  inconveniences.  The  fear  of  encouraging  a  spirit  of  vexa- 
tious litigation,  by  affording  too  great  a  facility  for  this  species 
of  action,  was  contrasted  with  the  mischief  resulting  to  the 
public  peace  from  refusing  legal  redress ;  and  according  as  the 
former  or  latter  of  these  considerations  preponderated,  so  was 
the  rule  of  decision  rigid  or  relaxed.299 

§  153.  Several  of  the  States  provide  by  statute  what  words 
shall  be  actionable ;  thus,  in  Mississippi,  Yirginia,  and  Georgia, 
it  is  enacted  that  all  words  which  from  their  usual  construction 
and  common  acceptation  are  considered,  as  insults  and  breaches 
of  the  peace,  shall  be  actionable.  In  Tennessee,  imputing  adul- 
tery or  fornication,  or  calling  one  coward  or  poltroon  for  not 
fighting  a  duel,  is  actionable.  In  Arkansas  and  Illinois,  to  im- 
pute adultery,  fornication,  or  false  swearing,  or  having  sworn  [or 
affirmed  in  Illinois]  falsely  in  common  acceptation,  whether  in  a 
judicial  proceeding  or  not,  is  actionable.  In  Missouri,  to  impute 
adultery  or  fornication,  is  actionable.  In  Indiana,  to  impute  to 
a  female  incest,  fornication,  adultery,  or  whoredom,  or  to  im- 
pute to  any  one  incest,  or  an  infamous  crime  against  nature 
with  man  or  beast,  is  actionable.  In  Florida,  a  charge  oy  any 
citizen  of  that  State  against  another,  imputing  incest,  fornica- 
tion, or  adultery,  is  actionable.  In  North  Carolina,  any  words 
spoken  of  a  female  which  amount  to  a  charge  of  incontinency, 
are  actionable  ;  and  in  Maryland,  all  words  tending  to  the  in- 
jury of  the  reputation.for  chastity  of  a  feme  sole,  are  action- 
ble.300 

In  the  absence  of  any  statutory  provision  on  the  subject,  all 
language  concerning  a  person  in  his  individual  capacity  merely, 
when  published  orally,  is  actionable  per  se,  which, 

I.  Charges  an  indictable  offence  involving  moral  turpitude  ; 


or, 


II.  Charges  the  being  afflicted  with  certain  diseases. 

§  154.   In  New  York,  oral  language  is  actionable  per  se, 

299  1  Starkie  on  Slander,  12. 

300  See  concluding  paragraph  of  note  18,  ante,  and  note  482,  j>ost. 


152  WHAT   LANGUAGE   IS   ACTIONABLE. 

•when  it  imputes  a  charge  which  if  true  will  subject  the  party 
charged  to  an  indictment  for  a  crime  involving  moral  turpitude, 
or  subject  him  to  an  infamous  punishment.  This  was  the  rule 
laid  down  by  Justice  Spencer,  in  Brooker  v.  Coffin^1  and  as  to 
which  Justice  Bronson  said,  that  although  it  was  not  entirely 
satisfactory  to  his  mind,  he  felt  bound  to  follow  it.302  It  was 
proposed  by  counsel  to  modify  the  rule  as  stated  above  by  alter- 
ing or  into  and,  but  the  court  refused  to  yield  to  the  sugges- 
tion,803 and  the  rule,  as  laid  down  in  Brooker  v.  Coffin,  has  been 
followed  in  numerous  cases  in  New  York  and  other  States.304 
In  reference  to  the  above  rule  it  has  been  remarked  that  "  when 
the  courts  say  the  words  are  actionable  if  they  subject  the  party 
to  indictment  and  infamous  punishment,  provided  they  be 
true,  we  clearly  understand  what  is  the  extent  of  the  rule ;" 
but  when  they  add,  "  or  subject  the  party  to  an  indictment  for 
an  offence  involving  moral  turpitude,  we  are  left  in  doubt  what 
charges  are  embraced  within  the  sentence;  it  lacks  precision."303 
And  again,  "  This  element  of  moral  turpitude  is  necessarily 
adaptive ;  for  it  is  itself  defined  by  the  state  of  public  morals, 
and  thus  far  fits  the  action  to  be  at  all  times  accommodated  to 
the  common  sense  of  the  community."  m      Chief  Justice  Par- 


301  5  Johns.  188. 

302  Young  y.  Miller,  3  Hill,  22. 

303  Widrig  v.  Oyer,  13  Johns.  124. 

304  Wright  v.  Paige,  36  Barbour,  438;  Quin  v.*  (7  Gar  a,  2  E.  D.  Smith,  388; 
Martin  v.  Stillwdl,  13  Johnson,  275 ;  Burtch  v.  Nickerson,  17  Johnson,  219  ; 
Van  Ness  v.  Hamilton,  19  Johns.  367 ;  Gibbs  v.  Dewey,  5  Cow.  503 ;  Dem- 
urest v.  Haring,  6  Cow.  88 ;  Crawford  v.  Wilson,  4  Barb.  504  ;  Alexander  v.  Alex, 
ander,  9  Wend.  141 ;  Hoag  v.  Hatch,  23  Conn.  590 ;  Andres  v.  Hoppenheafer,  3 
Serg.  &  R.  255  ;  Toddy.  Rough,  10  Serg.  &  R.  18  ;  McCutn  v.  Ludlam,  2  Harri- 
son (N.  J.),  12  ;  Johnson  v.  Shields,  1  Dutcher,  118  ;  Giddens  v.  Mirk,  4  Ga.  360  . 
Burton  v.  Burton,  3  Iowa,  316  ;  Gage  v.  Shclton,  3  Rich.  242;  Kinney  v.  Hosea,  3 
Harr.  77;  Coburn  \.  Harwood,  Minor,  93;  Ferdue  v.  Burnett,  Minor,  138;  Hil- 
house  v.  Peck,  2  Stew.  &  Por.  395  ;  Johnston  v.  Morrow,  9  Porter,  525 ;  Taylor  v. 
Kneeland,  1  Doug.  (Mich.),  67  ;  Beck  v.  Stitzel,  21  Penn.  St.  R.  522;  Billings  v. 
Wing,  7  Verm.  439;  The  State  v.  Burroughs,  2  Halst.  426;  1  Amer.  Lead.  Cas. 
113,  3d  ed. 

305  Daniel,  J.,  Skinner  y.  White,  1  Dev.  <fe  Bat.  471 ;  and  see  Brady  ,v.  Wilson, 
4  Hawks,  93 ;   Wall  v.  Hoskins,  5  Ired.  177  ;  Shipp  v.  McCraw,  3  Murph.  463. 

306  Lowrie,  J.,  Beck  v.  Stitzel,  21  Penn.  St.  Rep.  522. 


WHAT  LANGUAGE   IS  ACTIONABLE.  153 

ker  refused  to  adopt  the  rule  as  laid  down  in  Brooker  v.  Coffin, 
supra,  and  laid  down  the  rule  as  thus :  an  accusation  is  action- 
able whenever  an  offence  is  charged  which,  if  proved,  may  sub- 
ject the  party  to  a  punishment,  though  not  ignominious,  and 
which  brings  disgrace  upon  him.307 

The  same  learned  judge,  in  another  case,  laid  down  the 
rule  as  thus :  "  Words  imputing  crime  in  the  party  against 
whom  they  are  spoken,  which  if  true  would  subject  him  to 
disgraceful  punishment,  are  actionable  without  special  dam- 


§  155.  The  following  offences,  among  others,  have  been 
held  to  involve  moral  turpitude :  keeping  a  bawdy  house,309 
removing  land  marks,310  selling  spirituous  liquor  to  a  slave,311 
paying  money  to  secure  election  as  a  justice  of  the  peace,312 
opening  a  letter  addressed  to  another,313  altering  the  owner's 

307  Miller  v.  Parish,  8  Pick.  385. 

308  Chaddock  v.  Briggs,  13  Mass.  248 ;  and  to  the  like  effect,  Bloss  v.  Tobey,  2 
Pick.  320  :  "  Words  to  be  actionable  must  charge  an  offence  subject  to  corporal 
or  infamous  punishment."  {Elliott  v.  Ailsberry,  2  Bibb,  473  ;  McGee  v.  Wilson, 
Lit.  Sec.  Cas.  187.)  Words  are  not  actionable  per  se  when  "  they  impute  no  crime 
which  could  be  visited  by  infamous  punishment."  (Buck  v.  Hersey,  31  Maine, 
558 ;  Gosling  v.  Morgan,  32  Penn.  State  Rep.  273.)  The  charge  of  a  misde- 
meanor to  be  actionable  per  se  must  be  one  which  "  implies  some  heinous  offence 
involving  moral  turpitude."  {Mills  v.  Wimp,  10  B.  Monroe,  417.)  An  indict- 
ment lies  for  many  acts  not  involving  moral  turpitude.  (Quinn  v.  CGara,  2  E. 
D.  Smith,  388.) 

Words  charging  an  offence  involving  moral  turpitude  and  indictable,  although 
not  subjecting  the  offender  to  infamous  punishment,  are  actionable  in  themselves. 
(Perdue  v.  Burnett,  Minor,  138.) 

Any  words  which,  according  to  their  natural  import,  impute  a  crime  or  mis- 
demeanor, which  is  punishable  in  the  temporal  courts  by  corporal  punishment, 
are  actionable  in  themselves.     (Demarest  v.  Haring,  6  Cow.  76.) 

"  An  action  will  lie  for  all  words  spoken  of  another,  which  impute  to  him  the 
commission  of  a  crime  involving  moral  turpitude,  and  which  is  punishable  by 
law."     Heard  on  Libel,  25. 

309  Martin  v.  Stillwell,  15  Johns.  275 ;   Brayne  v.  Cooper,  5  M.  &  W.  249. 

310  Young  v.  Miller,  3  Hill,  24  ;  Todd  v.  Rough,  10  S.  &,  R.  18  ;  Dial  v.  Bolter, 
6  Ohio  (N.  S.),  228. 

311  Smith  v.  Smith,  2  Sneed,  473. 

312  Il,ag  v.  Hatch,  23  Conn.  585. 

313  Cheadle  v.  Buell,  6  Ham.  (>7  ;  contra,  McCuen  v.  Ludlam,  2  Harr.  12  ;  and 
see  Hillhouse  v.  Peck,  2  Stew.  &  Port.  395. 


154:  WHAT   LANGUAGE  IS   ACTIONABLE. 

marks  on  animals,314  soliciting  one  to  commit  murder,315  inde- 
cent exposure  of  the  person,316  embracery,317  making  a  false 
declaration  of  a  right  to  vote,318  and  counterfeiting.319 

§  156.  In  some  of  the  States  it  seems  that  all  oral  language 
which  imputes  an  indictable  offence  or  an  offence  punishable 
at  law,  is  actionable  per  se  ;  thus  it  is  said,  "  All  that  is  essen- 
tial to  the  maintenance  of  the  action  for  slander  is  that  the 
words  shall  impute  the  commission  of  a  punishable  offence."320 
To  be  actionable  the  effect  of  the  language  must  be  "  to  charge 
some  crime  or  offence  punishable  by  law  ; " 321  "  a  charge  of 
crime  or  some  punishable  offence," K2  or  "  words  imputing  to 
another  a  crime  punishable  by  law," 323  or  an  indictable  offence.324 
While  in  other  States  it  is  held  that  words,  to  be  actionable, 
must  impute  not  only  an  indictable  offence,  but  an  indictable 
offence  for  which  corporal  punishment  may  be  inflicted  as  the 
immediate  penalty.825 

§  157.  Judging  from  the  language  of  many  English  dicta, 
the  rule  in  England  would  seem  to  be  that  all  oral  language  is 
actionable  per  se,  which  imputes  a  crime  or  indictable  offence. 
"  An  action  lies  for  any  words  which  import  the  charge  of  a 
crime  for  which  the  party  may  be  indicted."826     "  The  test  is, 

314  Perdue  v.  Burnett,  Minor,  138. 

315  Demurest  v.  Having,  6  Cow.  76. 

316  Torbilt  v.  Clare,  9  Irish  Law  R.  86. 

317  Gibbs  v.  Dewey,  5  Cow.  503 ;  see  ante,  §  144,  subd.  j. 
316  Crawford  v.  Wilson,  4  Barb.  505. 

319  Howard  v.  Stephenson,  2  Const.  Rep.,  2d  series,  408  ;  Thirman  v.  Matthew, 
1  Stew.  384.     See  Arson,  Forgery,  Larceny,  Perjury,  Homicide. 

320  McKinney,  J.,  Poe  v.  Grever,  3  Sneed,  666.  "  Words  which  impute  tres- 
pass, assault,  battery,  and  the  like,  are  not  actionable  per  se,  and  yet  these 
offences  are  punishable  by  indictment."  (Smith  v.  Smith,  2  Sneed,  478  ;  Dudley 
V.  Horn,  21  Ala.  379;  Billings  v.  Wing,  7  Verm.  444.) 

321  Dunnell  v.  Ficke,  11  Mete.  552. 

322  Edgerlcy  v.  Swaine,  32  N.  Hamp.  481. 

323  Tenney  v.  Clement,  10  N.  Hamp.  57. 

324  Kinney  V.  Hosea,  3  Harring.  77. 

325  Birch  v.  Benton,  26  Miss.  (5  Jones)  153  ;  Billings  v.  Wing,  7  Verm.  144. 

326  Mayne  v.  Digle,  Freeman,  46.  Words,  to  be  actionable  in  themselves,  must 
charge  some  scandalous  crime ;  they  must  be  such  as  to  impute  to  the  party  an 


WHAT  LANGUAGE   IS   ACTIONABLE.  155 

■whether  the  crime  is  indictable  or  not."  m  "  Where  an  offence  of 
a  criminal  nature  is  imputed  by  the  slander  for  which  the  party 
is  liable  to  indictment  or  punishment  by  the  common  or  statute 
law,  those  words  are  actionable  per  se.m  "  It  is  wrell  known 
that  words  are  not  actionable  unless  they  impute  some  crime  or 
indictable  offence."329  "  The  words,  to  be  actionable,  must  im- 
pute a  criminal  offence  ;  that  is,  the  words,  if  true,  must  be 
such  that  the  plaintiff  would  be  guilty  of  a  criminal  offence."330 
While  other  decisions  seem  to  require  that  an  offence  must  be 
imputed — which  would  not  only  subject  the  party  charged  to 
imprisonment,  but  to  an  infamous  punishment.  To  make  the 
words  actionable  per  se  "  there  must  not  only  be  imprisonment, 
but  an  infamous  punishment ;  " m  and  therefore  in  that  case  it 
was  held  that  the  words  "  Thou  art  one  of  those  that  stole  my 
Lord  Shaftesbury's  deer  "  were  not  actionable  per  se,  because, 
although  the  offence  of  deer  stealing  was  punishable  by  im- 
prisonment, it  was  not  an  infamous  punishment.  "  The  words 
[to  be  actionable]  must  contain  an  express  imputation  of  some 
crime  liable  to  punishment,  some  capital  offence,  or  other  in- 
famous crime  or  misdemeanor."332  Mr.  Starkie  says:  "Per- 
haps it  may  be  inferred,  generally,  that  to  impute  any  crime  or 
misdemeanor  for  which  corporal  punishment  may  be  inflicted 

offence  for  which  he  may  be  indicted.  {Wahnsley  v.  Russell,  6  Mod.  200.)  In 
Smale  v.  Hammon,  1  Bulst.  40,  it  was  said  where  the  words  spoken  do  tend  to  the 
infamy,  discredit  or  disgrace  of  the  party,  they  shall  be  actionable,  but  this  dic- 
tum was  said  to  go  too  far.  {Holt  v.  Scholefield,  6  T.  R.  691.)  In  Scobdl  v.  Lee 
(2  Show.  32),  it  was  held  not  actionable  to  call  one  regrator,  because  regrating, 
although  criminal,  was  not  punishable  by  loss  of  life  or  limb. 

827  Comyn  Dig.  Act.  for  Defam.  F.  20. 

328  2  Saund.  PI.  and  Ev.  898,  2d  Eng.  Ed. 

329Tyndal,  Ch.  J.  Edsall  v.  Russell,  5  Sc.  N.  R.  815;  2  Dowl.  N.  S.  648; 
4  M.  and  G.  1099;  12  Law  Jour.  N.  S.  C.  B.  1. 

330  Alderson,  B.  Heming  v.  Power,  10  M.  and  W.  570. 

331  Holt,  Ch.  J.,  Turner  v.  Ogden,  2  Salk.  696. 

832  De  Grey,  Ch.  J.,  Onslow  v.  Home,  3  Wilson,  186.  This  rule,  says  Mr. 
Heard  (Heard  on  Libel,  16),  is  universally  referred  to  as  the  correct  rule,  and 
was  repeated  in  Holt  v.  Scholefield,  6  T.  R.  694,  and  in  Beardsley  v.  Dibblee,  1 
Kerr,  258,  and  adopted  in  Shiffer  v.  Ktutzer,  1  Binney,  542  ;  Andres  v.  Koppen- 
heafer,  3  Serg.  &  R.  257  ;  Bloom  v.  Bloom,  5  id.  392 ;  Pelton  v.  Ward,  3  Caines, 
79;  Smith  v.  Smith,  2  Sneed,  478  ;  Johnson  v.  Shields,  1  Dutcher,  119. 


156  WHAT   LANGUAGE   IS  ACTIONABLE. 

in  a  temporal  court  is  actionable,  without  proof  of  special  dam- 
age. Where  the  penalty  for  an  offence  is  merely  pecuniary, 
an  action  will  not  lie  for  charging  such  offence ;  even  though 
in  default  of  payment  imprisonment  should  be  prescribed, 
imprisonment  not  being  the  primary  and  immediate  punish- 
ment for  the  offence."333 

§  158.  It  has  been  supposed  that  the  gist  of  the  action  for 
slander  was  the  peril  of  prosecution  to  which  a  person  was 
exposed  by  the  charge,  and  therefore  that  for  charging  an 
offence  which  has  been  pardoned  or  atoned  for,  or  which  is 
barred  by  the  statute  of  limitations,  no  action  can  be  main- 
tained. Thus  it  is  said,  "  The  ground  of  the  matter  being 
actionable  is,  that  a  charge  is  made  which,  if  it  were  true, 
would  endanger  the  plaintiff'  in  point  of  law." m  The  better 
opinion  is,  that  the  action  of  slander  "  is  always  for  the  loss  of 
character  and  not  the  danger  of  punishment," 335  or  the  hazard  of 
a  criminal  prosecution.336  "  It  is  a  great  slander  to  be  once  a 
criminal ;    and  although  a  pardon  may  discharge  the  punish- 

333  1  Starkie  on  Slander,  43 ;  6  Mod.  104.  This  view  of  the  law  is  adopted  in 
Billings  v.  Wing,  7  Verm.  439  ;  Wagaman  v.  Byers,  17  Md.  183  ;  and  in  a  note  at 
page  90  of  Metcalf 's  edition  of  Yelverton's  Reports ;  but  is  questioned  1  Amer. 
Lead.  Cas.,  112,  2d  ed.,  and  in  Smith  v.  Smith,  2  Sneed,  478.  Saying  that  plain- 
tiff went  to  mass  was  held  actionable,  because  it  was  by  statute  an  offence  punish- 
able by  fine  and  imprisonment.  (Sir  Lionel  Walden  v.  Mitchell,  2  Vent.  265.)  And 
concealing  a  felony  was  held  actionable  at  a  time  when  such  an  offence  was  punish- 
able by  fine  only.  (Newlyn  v.  Fasset,  Yelv.  154.)  But  the  words  thou  art  a  com- 
mon barretor,  it  was  said  would  not  support  an  action  because  the  punishment 
was  merely  fine  and  binding  to  good  behavior.     (Heake  v.  Moulton,  Yelv.  90.) 

334  Parke,  B.,  Kerning  v.  Power,  10  M.  &  W.  569.  See  Harvey  v.  Boies,  1 
Penn.  14;  Andres  v.  Hoppenheafer,  3  Serg.  &  R.  258;  Dalrymple  v.  Lofton,  1 
M'Mullan,  118.  "  The  grounds  of  action  are  to  be  found  in  the  degradation  of 
the  party  in  society,  or  his  liability  to  criminal  animadversion.  *  *  *  The 
party's  jeopardy,  in  a  legal  point  of  view,  is  regarded  by  the  law  as  the  princi- 
pal ground  of  action."  (1  Starkie  on  Slander,  18.)  But  criminal  liability  is  not 
always  the  peculiar  and  exclusive  ground  of  action ;  instances  are  to  be  found  of 
remedy  for  imputations  which  could  not  subject  the  party  to  any  future  penalty. 
(Id.  19.) 

335  Van  Ankin  v.  West/all,  14  Johns.  233  ;  Shipp  v.  McCraw,  3  Murph.  466. 

336  Eastland  v.  Caldwell,  2  Bibb,  24 ;  Smith  v.  Stewart,  5  Barr,  372 ;  Beck  v. 
Stitzel,  21  Penn.  St.  R.  524 ;  Poe  v.  Grever,  3  Sneed,  664. 


WHAT  LANGUAGE   IS   ACTIONABLE.  157 

ment,  jet  the  scandal  of  the  offence  remains."337  It  is  in  this 
view  that  it  has  been  held  actionable,  subject  to  justification  on 
the  ground  of  truth,838  to  say  of  one,  "  He  was  a  thief  and  stole 
my  gold  ; " 339  or,  "  He  is  a  returned  convict ;  "  m  or,  "  He  is  a 
convict  and  has  been  in  the  Ohio  penitentiary  ; " 341  or,  "  You 
have  been  cropped  for  felony ;  "  m  or,  "  Thou  wast  in  Laun- 
ceston  gaol  for  coining  and  burnt  in  the  hand  for  it;"343  or, 
"  Robert  Carpenter  (the  plaintiff)  was  in  Winchester  gaol  and 
tried  for  his  life,  and  would  have  been  hanged  had  it  not  been 
for  Leggett,  for  breaking  open  the  granary  of  farmer  A.  and 
stealing  his  bacon ; " m  or,  "  He  was  whipped  for  stealing 
hogs;"345  or,  "He  was  put  in  the  roundhouse  for  stealing 
ducks  at  Crowland ; "  m  or,  "  Thou  hast  been  in  gaol  for  steal- 
ing a  pan." 347  For  the  words,  "  Thou  wert  in  gaol  for  robbing 
on  the  highway,"  the  court  was  divided  if  actionable  or  not;348 
a  charge  of  committing  a  statutable  offence  was  held  action- 
able, although  intermediate  the  speaking  the  words  and  the 
commencement  of  the  action  the  statute  was  repealed. 


3-19 


§  159.  Where  the  offence  is  charged  to  have  been  com- 
mitted in  a  foreign  state,  it  will  be  actionable  if  it  appear  that 
the  offence  charged  is  one  by  the  law  of  that  state  punishable 
by  indictment,  and  involving  moral  turpitude.      Where  the 

337  Boston  v.  Tatham,  Cro.  Jac.  622,  and  see  Cuddington  v.  Williams,  Hobart, 
81. 

338  Baum  v.  Clause,  5  Hill,  196 ;    Van  Ankin  v.    Westfall,  14  Johns.  233;  and 
see  post,  Defences. 

339  Boston  v.  Tatham,  Cro.  Jac.  622. 

310  Fowler  v.  Dowdney,  2  Moo.  &  Rob.  119;  and  see  the  reporter's  note  to  this 
case. 

341  Smith  v.  Stewart,  5  Barr,  372. 

342  Wiley  v.  Campbell,  5  Monr.  396. 

343  Gainford  v.  Tuke,  Cro.  Jac.  536. 

344  Carpenter  v.  Tarrant,  Rep.  temp.  Hard.  339,  cited  by  L'd  Elleuborough 
Roberts  v.  Camden,  9  East,  97. 

345  Holley  v.  Burgess,  9  Ala.  728. 
348  Beavor  v.  Hides,  2  Wils.  300. 

347  Showcll  v.  Hainan,  Cro.  Jac.  153. 
■''"  Shi  ale  v.  Hamrnon,  1  Bulst.  40. 
3,9  French  v.  Creath,  Breese,  12. 


15S  WHAT   LANGUAGE   IS  ACTIONABLE. 

offence  charged  is  one  punishable  by  indictment  at  common 
law  it  will  be  presumed  to  be  indictable  everywhere ;  but  if 
the  offence  charged  be  one  created  by  statute  or  punishable  by 
indictment  by  statute,  then,  as  courts  cannot  take  judicial 
notice  of  the  statutes  of  foreign  states,  to  make  the  charge 
actionable  the  statute  relating  to  the  offence  charged  must  be 
pleaded  and  proved  like  any  other  fact.350  Thus  it  is  actionable 
per  se,  to  charge  one  with  stealing  in  a  foreign  state  or  coun- 
try,331 or  with  murder,352  and  an  action  may  be  maintained  for 
charging  a  crime  committed  in  another  state,  which  it  would 
not  be  actionable  to  charge  the  commission  of  in  the  state  in 
which  the  action  is  commenced.353 

§  160.  "  ]STo  charge  upon  a  plaintiff,  however  foul,  will  be 
actionable  without  special  damage,  unless  it  'be  of  an  offence 
punishable  in  a  temporal  court  of  criminal  jurisdiction," 3si  and 

350  Offutt  v.  Earlywine,  4  Blackf.  460  ;  Zinville  v.  Earlywine,  id.  469 ;  Langdon  v. 
Young,  33  Verm.  136 ;  Stout  v.  Wood,  1  id.  71 ;  Barclay  v.  Thompson,  2  Penns. 
148 ;  Poe  v.  Grever,  3  Sneed,  644.  Thus  the  stealing  of  bank  notes  not  being 
indictable  at  common  law,  to  charge  a  theft  of  bank  notes  in  South  Carolina,  was 
held  not  to  be  actionable  in  North  Carolina,  unless  it  was  shown  that,  by  the  laws 
of  South  Carolina,  such  stealing  was  subject  to  an  infamous  punishment.  (  Wall 
v.  Hoskins,  5  Iredell,  177.)  A.  and  B.  being  in  North  Carolina,  A.  charged  B. 
with  stealing  a  note  from  him  in  Arirginia,  and  it  appearing  that  stealing  notes 
was  a  larceny  in  Virginia,  the  charge  was  held  to  be  actionable.  (Shipp  v. 
McCraw,  3  Murph.  463.) 

361  As  to  say  in  Canada,  Old  Smith  (plaintiff  j  is  a  damned  thief,  he  stole  a  cow  in 
the  States  (United  States).  (Smith  v.  Collins,  3  Up.  Can.  Q.  B.  R.  1 ;  and  see 
Johnson  v.  Bichen,  25  Missouri,  315;   Cefret  v.  Burch,  1  Sneed,  400.) 

3oi  Words  charging  the  commission  of  murder  in  Ireland  are  actionable  with- 
out proving  murder  to  be  an  indictable  offence  in  that  country.  (Montgomery  v. 
Deeley,  3  Wis.  709.)  To  charge  one  with  administering  poison  in  a  foreign  coun- 
try, with  intent  to  kill,  is  actionable,  semble  the  court  will  presume  such  an 
offence  to  be  indictable.     See  Langdon  v.  Young,  33  Verm.  136. 

353  Van  Anhin  v.  West/all,  14  Johns.  233 ;  and  see  Stout  v.  Wood,  1  Blackf.  71. 

354  1  Starkie  on  Slander,  21,  and  he  proceeds  to  establish  this  proposition  by 
referring  to  the  cases  in  which  it  has  been  decided  that  to  say  a  man  is  "  for- 
sworn," or  has  "  taken  a  false  oath,"  is  not  actionable  unless  the  charge  connects 
it  with  some  judicial  proceeding.  Without  this  connection  he  says  the  charge 
only  imputes  a  breach  of  morality,  for  which  no  action  lies.  [See  Perjury,  post.] 
Besides  the  older  authorities  there  is  cited  Hopkins  v.  Becdle,  1  Cai.  347;  Stafford 
v.  Green,  1  Johns.  505  ;  Ward  v.  Clark,  2  id.  10 ;  Watson  v.  Hampton,  2  Bibb's  R. 


WHAT  LANGUAGE   IS  ACTIONABLE.  159 

therefore  held  not  actionable  per  se  to  charge  a  breach  of  trust355 
or  a  malicious  trespass,356  or  of  burning,  destroying,  and  sup- 
pressing a  will,357  or  attempting  to  procure,  or  causing  or  pro- 
curing a  miscarriage,358  or  with  incest,359  or  adultery,360  or  crime 

319;  Jacobs  v.  Fylee,  3  Hill,  572.  To  these  we  add  Hopwood  v.  Thorn,  8  C.  B. 
293 ;  Bute  v.  Gill,  2  Monr.  65  ;  Dorscy  v.  Whipps,  8  Gill,  457 ;  Holt  v.  Schofield,  6 
T.  R.  694 ;  Wyant  v.  Smith,  5  Blackf.  293 ;  Tebbetts  v.  Goding,  9  Gray,  254 ; 
Edgerly  v.  Swain,  32  N.  H.  478;  Wright  r.  Lindsay,  20  Ala.  428 ;  Barham  v. 
Nethersall,  Yelv.  21 ;  and  see  Heard  on  Libel,  §  28.  A  charge  of  having 
"broken  open  and  read  a  letter"  sent  by  mail,  held  not  actionable,  because  the 
offence,  although  indictable,  is  not,  morally  speaking,  a  crime.  {Hillhouse  v. 
Peck,  2  Stew.  &  Port.  395;  and  see  McCuen  v.  Ludlam,  2  Harr.  12;  Cheadle  v. 
Buell,  6  Ham.  67.) 

Where  the  words  on  their  face  charge  a  criminal  offence,  but  are  shown  by 
their  context  or  otherwise,  not  to  have  that  meaning,  they  are  not  actionable ; 
thus  the  words  they  are  highwaymen,  robbers,  and  murderers,  being  shown  to 
relate  to  a  transaction  not  amounting  to  a  criminal  offence,  were  held  not  to  be 
actionable.  {Van  Reiisselaer  v.  Dole,  1  Johns.  Cas.  279.)  And  see  §  134  and 
note  147,  ante. 

It  has  been  held  that  a  charge  by  a  married  woman  of  having  stolen  her 
goods,  is  not  actionable  [she  having  no  separate  estate],  as  a  married  woman 
could  not  have  goods  of  her  own.  (1  Rolle  Abr.  74;  6  Bac.  Abr.  238;  1  Starkie 
on  Slander,  77.)  But  where  a  married  woman  said  my  turkeys  are  stolen,  Char- 
nell  hath  stolen  them,  it  was  held  Charnell  might  have  his  action.  (CharneU's 
Case,  Cro.  Eliz.  279.)  And  so  where  a  married  woman  said,  thou  hast  stolen 
my  faggots.  {Stamp  v.  White,  Palmer,  358  ;  and  see  Powell  v.  Plunkett,  Cro.  Car. 
52.) 

By  the  statutes  of  Illinois,  no  child  under  the  age  of  ten  years  can  be  pun- 
ished for  larceny ;  but  an  action  may  be  maintained  by  such  child  for  slanderous 
words  accusing  her  of  theft.  {Stewart  v.  Howe,  17  111.  71 ;  and  see  Redwayx. 
Gray,  31  Verm.  (2  Shaw)  292 ;  Dukes  v.  Clark,  2  Blackf.  20;  Bash  v.  Somers,  20 
Penn.  (8  Harris)  159.     See  notes  143,  144,  240,  and  §  144,  subd.  bb.  ante. 

365  McClurg  v.  Ross,  5  Binn.  218. 

350  Wilcox  x.  Edwards,  5  Blackf.  183. 

357  OHanlon  v.  Myers,  10  Rich.  Law  (S.  C),  128;  and  see  3  Salk.  327. 

358  Not  within  the  exceptions  of  the  statute  (Bissell  v.  Cornell,  24  Wend.  354; 
Abrams  v.  Foshee,  3  Clarke,  274 ;  Smith  v.  Gafford,  31  Ala.  45),  and  held  not 
actionable  to  charge  an  attempt  to  commit  a  robbery.  {Russell  v.  Wilson,  7  B. 
Monr.  261.) 

359  Eure  v.  Odom,  2  nawks,  52;  and  as  to  charge  of  incest,  see  Starr  v.  Gard- 
ner, 6  Up.  Can.  Q.  B.  Rep.  O.  S.  512 ;  Watts  x.  Greenlee,  2  Dev.  115 ;  Gallwcy  v. 
Marshall,  9  Exch.  294,  ante,  §  141. 

860  Wagaman  v.  Byers,  17  Md.  183 ;  Castlebury  v.  Kelly,  26  Geo.  606  ;  see  ante, 
§  144,  subd.  a.,  and  post. 


160  WHAT   LANGUAGE   IS  ACTIONABLE. 

against  nature,361  or  with  cheating,362  or  "  niismarking  "  cattle,363 
or  living  by  imposture.364    - 

§  161.  A  purpose  or  intent  to  do  an  unlawful  act  without 
any  act  being  done,  is  not  punishable  criminally,  and  therefore 
within  the  rule  stated  in  the  last  preceding  section  (§  160),  it  is 
not  actionable  orally  to  charge  one  with  a  mere  intent  to 
commit  an  offence,365  "  and  this  rule  seems  in  all  times  to  have 
been  adhered  to  with  more  consistency  than  is  generally  observ- 
able in  decisions  relating  to  slander."  m  Thus  it  has  been  held 
not  actionable  to  say  of  one,  Thou  hast  procured  J.  S.  to 
come  thirty  miles  to  commit  perjury  against  his  father  *  *  * 
and  hast  given  him  £10  for  his  pains  ;  or,  Harris  hath  procured 
and  suborned  one  Smith  to  come  thirty  miles  to  commit  perjury 
against  his  father  *  *  *  and  given  Smith  £10  for  that 
purpose  j867  or,  Thou  wouldst  have  killed  me,368  or  She  would 
have  cut  her  husband's  throat  ;m  or,  Thou  wouldst  have  taken 
my  purse  from  me  on  the  highway;370  or,  Thou  wouldst  have 
murdered  me;371  or,  Sir  Harbert  Crofts  keepeth  men  to  rob 
me ; 372  but  for  the  words,  He  sent  his  man  A.  to  kill  me,  the 

361  Coburn  v.  Harwood,  Minor,  93;  Estes  v.  Carter,  10  Iowa,  400;  see  ante,  §§ 
144,  153,  and  post.  Where  the  crime  against  nature  is  indictable,  to  charge  the 
commission  of  it  is  actionable.     {Goodrich  v.  Woolcot,  3  Cow.  231 ;  5  Cow.  714.) 

362  Odiorne  v.  Bacon,  6  Cush.  185  ;  Richardson  v.  Allen,  2  Chit.  657  ;  Wierback 
v.  Trone,  2  Watts  &  Ser.  408.  Thou  hast  cheated  me  of  several  pounds,  held 
actionable.     (Surman  v.  Shilletto,  3  Burr.  1688.) 

363  Williams  v.  Karnes,  4  Humph.  9 ;  Johnston  v.  Morrow,  9  Port.  525. 

364  Willy  v.  Elston,  18  Law  Jour.- 320,  C.  P. ;  13  Jur.  706;  7  Dowl.  &  L.  143; 
8  C.  B.  142. 

365  McKee  v.  Ingalls,  4  Scam.  30 ;  Seaton  v.  Cordray,  Wright,  101 ;  Harrison 
v.  Stratton,  4  Esp.  218. 

3S6  1  Starkie  on  Slander,  23. 

367  Harris  v.  Dixon,  Cro.  Jac.  158 ;  Yelv.  72. 

368  Potts'  Case,  Vin.  Ab.  Act.  for  Words,  Q.  a.  8  ;  cited  as  Dr.  Poe's  Case,  2 
Bulst.  206. 

369  Scott  v.  Hilliers,  Lane,  98;  but  it  being  added,  and  did  attempt  it,  the  latter 
words  were  held  actionable. 

370  Godb.  202. 

371  Tettal  v.  Osborne,  cited  in  Storrer  v.  Audley,  Cro.  Eliz.  250.  He  sought  to 
murder  me,  held  actionable,  because  sought  implies  more  than  a  mere  intent. 
(Cro.  Eliz.  308.) 

372  Crofts  v.  Brown,  3  Bulst.  167. 


WHAT  LANGUAGE   IS   ACTIONABLE.  161 

court  were  divided  if  actionable  or  not ; S73  and  the  words,  He 
will  lie  in  wait  to  rob  J.  S.  within  two  days,  were  held  action- 
able.374 From  the  fact  that  in  England  a  mere  intent  may  con- 
stitute the  crime  of  treason,  a  charge  of  treasonable  intention 
has  there  been  held  to  be  actionable  ;  thus,  for  saying  "  he  is  a 
Jacobite,  and  for  bringing  in  the  Prince  of  Wales  and  popery 
to  the  destroying  of  our  nation,"  held  an  action  could  be  main- 
tained.375 

§  162.  It  has  been  said  the  cases  are  uniform  on  the  point 
that  for  an  imputation  of  evil  inclinations  or  principles  no 
action  lies,  unless  it  affects  the  plaintiff  in  some  particular  char- 
acter, or  produces  special  damage.376  But  unless  by  inclinations 
and  principles  are  meant  intentions  (§  161),  or  the  assertion  be 
limited  to  oral  language,  the  dictum  seems  to  be  unwarranted. 
It  was  held  actionable  to  publish  in  writing  that  plaintiff  had 
openly  avowed  the  opinion  that  government  had  no  more  right 
to  provide  by  law  for  the  support  of  the  worship  of  the  Supreme 
Being  than  for  the  support  of  the  worship  of  the  Devil;377  or 
that  plaintiff  would  put  his  name  to  anything  that  T.  would 
request  him  to  sign,  that  would  prejudice  D.'s  character;378  and 
the  words,  "  He  would  rob  the  mail  for  one  hundred  dollars," 
spoken  of  a  postmaster,  were  held  actionable.379 

§  163.  It  is  held,  in  some  cases,  that  words  which  denote 
the  opinion  or  the  suspicion  entertained  by  the  publisher,  are 
not  equivalent  to  a  direct  charge,  and  therefore  are  not  action- 
able;380 thus,  where  the  words  were,  "I  have  a  suspicion  that 
you,  B.,  have  robbed  my  house,  and  therefore  1  take  you  into 
custody,"  it  was  held  the  judge  rightly  directed  the  jury  that  if 
they  believed  the  defendant  meant  to  impute  only  a  suspicion 

373  Bray  v.  Andrews,  Moore,  63  ;  Dal.  66. 

374  Sidman  v.  Mayo,  3  Bulst.  261. 

375  prin  y  ffowe>  i  j}ro  pari   Qas  (54  .  anc]  see  Eaton  v_  Allen,  4  Rep.  16. 

316  1  Starkie  on  Slander,  24  ;  Harrison  v.  Stratton,  4  Esp.  218. 
371  Stow  v.  Converse,  3  Conn.  325. 

376  human  v.  Brown,  15  B.  Monr.  186. 

379  Craig  v.  Brown,  5  Blackf.  44. 

380  Words  which  denote  opinion  or  suspicion  are  not  actionable.     (Comyn's 
Dig.  Act.  for  Defam.  F.  13 ;  cited  in  Hodgson  v.  Scarlett,  1  B.  &  Aid.  233.) 

11 


1G2  WHAT   LANGUAGE   IS   ACTIONABLE. 

of  felony,  and  not  an  absolute  charge  of  felony,  their  verdict 
must  be  for  the  defendant.381  The  words  "  she  ought  to  have 
been  transported,"  were  held  not  actionable  because  they  ex- 
pressed only  the  opinion  of  the  speaker.382  But  the  words, 
He  ought  to  be  hanged  as  much  as  A.,  who  was  in  fact  hanged, 
were  construed  to  charge  an  offence  which  deserved  hanging, 
and  actionable  ;m  and  it  was  held  actionable  to  say  of  one,  if 
you  had  your  deserts  you  had  been  hanged  before  now;384  and 
so  of  the  words,  He  hath  deserved  his  ears  to  be  nailed  to  the 
pillory,385  but  not  actionable  to  say :  Thou  deservest  to  be 
hanged;386  or,  Thou  shouldst  have  sat  on  the  pillory  if  thou 
hadst  thy  deserts ;  ^  or,  Thou  hast  done  that  for  which  thou 
deservest  to  be  hanged.388  But  the  words,  You  have  done 
things  with  the  company  for  which  you  ought  to  be  hanged, 
and  I  will  have  you  hanged  before  the  first  of  August,  were 
held  actionable ; m  and  so  of  the  words,  "  I  know  enough  he  has 
done  to  send  him  to  the  penitentiary."390  It  was  held  not  to 
be  actionable  to  say  of  one,  "  He  is  a  great  rogue,  and  deserves 
to  be  hanged  as  well  as  Gale,"  who  was  condemned  to  be 
hanged.     Because  the  words  show  opinion  merely,  and  perhaps 

381  Tozer  v.  Mashford,  4  Eng.  L.  <fe  Eq.  R.  451 ;  6  Exch.  539 ;  20  Law  Jour. 
Rep.  (N.  S.)  Ex.  224.  The  words,  "  I  will  take  him  to  Bow  street  (a  police  court 
so  called)  on  a  charge  of  forgery,"  held  not  actionable,  as  not  amounting  to  a 
charge  of  felony.     (Harrison  v.  Xing,  4  Price,  46;  7  Taunt.  431.) 

382  Hancock  v.  Winter,  7  Taunt.  205.  The  words,  1  will  transport  him  for 
felony,  were  held  actionable.     (Tempest  v.  Chambers,  1  Stark.  Cas.  67.) 

383  Read  v.  Ambridge,  6  Car.  &  P.  308 ;  and  see  Davis  v.  Noak,  1  Stark.  Cas. 
372. 

364  Downs'  Case,  Cro.  Eliz.  62. 

385  Jenkinson  v.  Mayne,  Cro.  Eliz.  384. 

386  Heake  v.  Moulton,  Yelv.  90. 
'387  Anon.,  Moore,  243. 

368  Fisher  \.  Atkinson,  Vin.  Abr.  Act.  for  Words,  G.  a.  5. 

389  On  the  ground  that  they  imputed  the  commission  of  a  crime  punishable  by 
hanging  (Francis  v.  Roose,  3  M.  &  W.  191).  "I  will  have  him  transported  for 
perjury  and  forgery,"  with  special  damage  held  actionable.  (Floyd  v.  Jones,  2 
Barnard.  101.) 

390  Johnson  v.  Shields,  1  Butcher,  116.  A  general  charge  of  haying  been 
guilty  of  crime  without  naming  the  particular  crime,  seems  sufficient  (Curtis  v. 
Curtis,  4  Moo.  &  S.  337) ;  but  held  not  sufficient  to  say  he  had  been  guilty  of 
conduct  unfit  for  publication.     (James  v.  Brook,  10  Jur.  541.) 


WHAT  LANGUAGE   IS   ACTIONABLE.  163 

the  speaker  might  not  think  Gale  deserved  hanging.391  It  was 
held  not  actionable  to  say,  I  will  take  him  to  Bow  street  (a 
police  office  so  called)  on  a  charge  of  forgery.392  It  was  held 
actionable  for  one  to  say  he  supposed  the  plaintiff  was  guilty 
of  a  crime ; 393  or,  I  think  he  is  a  horse  stealer.394  It  seems 
no  more  than  the  expression  of  an  opinion  to  say,  "  Two  dyers 
have  gone  off,  and  for  aught  I  know  Harrison  will  be  so  too 
within  this  time  twelve  month."  Yet  these  words  were  held 
to  be  actionable;395  so  of  the  words,  "All  is  not  well  with 
Daniel  Vivian ;  there  are  many  merchants  who  have  lately 
failed,  and  I  expect  no  otherwise  of  Daniel  Vivian"  ;396  and  so 
of  the  words,  "  I  am  thoroughly  convinced  you  are  guilty  of 
the  death  of  D.  D."897  But  held  not  actionable  to  express  a 
supposition  or  belief  that  one  went  to  a  certain  place  for  the 
purpose  of  persuading  another  to  commit  adultery  with 
him.898 

§  164.  One  may  charge  another  with  the  commission  of  an 
offence  as  well  by  way  of  a  question  as  by  a  direct  assertion,399 
as,  Is  H.  the  man  who  broke  jail?400  what  art  thou?  a  bank- 
rupt ; m  when  will  you  bring  home  the  nine  stolen  sheep  you 

301  Bush  v.  Smith,  2  Jones,  15V. 

392  Harrison  v.  King,  4  Price,  46  ;   1  Taunt.  431. 

393  Dickey  v.  Andrews,  32  Verm.  55. 

394  Stitch  v.  Wisedome,  Cro.  Eliz.  348. 

395  Harrison  v.  Thomborongh,  10  Mod.  11. 

396  3  Salk.  326. 

397  Peake  v.  Oldham,  Cowper,  275 ;  2  W.  Black.  9G0. 

398  Dickey  v.  Andrews,  32  Verm.  55,  and  as  to  a  charge  of  inciting  one  to  com 
mit  a  crime  (see  Passle  v.  Mondford,  Cro.  Eliz.  141;  Lady  Cockaine's  Case,  Cro. 
Eliz.  49 ;  Eaton  v.  Allen,  4  Co.  16).  The  dicta  and  decisions  that  words  denoting 
opinion  are  not  actionable,  must  have  their  origin  in  the  supposed  distinction  be- 
tween matters  of  fact  and  matters  of  opinion.  See  this  distinction  discussed  in  a 
case  of  misrepresentation,  Haight  v.  Hoyt,  19  N.  Y.  468,  in  an  Essay  on  the  influ- 
ence of  authority  in  matters  of  opinion,  by  George  Cornewall  Lewis,  and  in  the 
review  of  that  work — Edinburgh  Review,  April,  1850;  also  in  Whateley's  Logic; 
and  see  the  distinction  noticed,  Root  v.  King,  1  Cow.  629. 

399  Gorham  v.  Ives,  2  Wend.  534  ;  Sawyer  v.  Eifert,  2  Nev.  <fe  M.  511. 
«»  Hotchkm  v.  Oliphant,  2  Hill,  510. 

401  Jordan  v.  Lystcr,  Cro.  Eliz.  273,  pi.  1. 


io4  WHAT   LANGUAGE   IS   ACTIONABLE. 

stole  from  I.  S.?402  have  you  brought  the £40  you  stole?403  wilt 
thou  murder  my  sister  as  thou  didst  thy  wife  ? m  who  stole  the 
bell-ropes  ? 405  Asking  as  to  a  forgery,  whether  the  witness  did. 
not  think  it  was  in  G-.'s  handwriting,  and  asserting  that  he  had 
shown  it  to  some  persons  who  said  it  was  in  G.'s  handwriting, 
would  seem  to  show  an  intent  to  impress  a  belief  of  G.'s  guilt 
of  the  forgery.406 

§  165.  In  some  of  the  older  cases  it  was  held,  that  "  adjec- 
tive words,"  or  "  words  spoken  adjectively,"  do  not  confer  a 
right  of  action.  But,  as  was  well  said  by  Lord  Coke,  "  some- 
times adjectives  will  maintain  an  action  and  sometimes  not."407 
Thus  it  was  held  not  actionable  to  call  one  "  conjuring  knave,"403 
or  "  murderous  villain," 409  or  "  pocky  whore," 410  or  "  rebellious 
knave;"411  but  held  actionable  to  call  one  a  "traitorous 
knave,"412  or  a  "traitor  knave."413  "We  conceive  the  true  rule 
to  be,  that  when  the  word  imputes  an  act  it  is  actionable,  and 
when  it  imputes  an  intention  or  inclination  only  it  is  not  action- 
able.414 Thus  it  has  been  held  not  actionable  to  call  one  a 
"  thievish  knave,"  or  to  say  to  one  "  thou  hast  thievishly 
taken  my  money,"  because  the  word  thievish  or  thievishly 
implies  an  inclination  only  ;415  but  to  call  one  a  thieving  rogue 


402  Hunt  v.  Thimblethorp,  Moore,  418. 

403  Mayott  v.  Gibbons,  2  Rolle  R.  166. 

404  Brown  v.  Charlton,  Keb.  359,  pi.  52. 

405  Jackson  v.  Adams,  2  Scott,  599 ;  2  Bing.  N.  C.  462.    The  words  in  this  case 
were  held  not  actionable.     See  in  note  143,  ante. 

408  Gorham  v.  Ives,  2  Wend.  534. 
401  4  Coke,  19. 

408  Killick  v.  Barns,  2  Bulst.  138. 

409  Ld.  Raym.  236.     So  "murderous  quean"  held  not  actionable.      (Yin.   Ab., 
Act.  for  Words,  I  a.  4.) 

410  Gulford's  Case,  2  Rolle  R.  VI ;  and  "pocky  rascal,"  see  Yin.  Abr.,  Act.  for 
Words,  G.  b.  5. 

411  Ward  v.  Thome,  Cro.  Eliz.  171 ;  Booth  v.  Leach,  Lev.  90. 

412  Id. 

413  Selby  v.  Carryer,  2  Bulst.  210. 

414  1  Starkie  on  Slander,  71,  and  §  162,  ante. 

416  Yin.  Abr.,  Act.  for  Words,  I.  a.  4,  11 ;  Robins  t.  Hildredon,  Cro.  Jac.  65. 


WHAT   LANGUAGE   IS   ACTIONABLE.  165 

was  held  actionable  because  thieving  implies  an  act.416  "  Thiev- 
ing puppy "  was  held  actionable.417  and  so  were  "  thievish 
pirate,"418  "bankrupt  knave,"  " pocky  knave," 419  and  "bank- 
rupt skrub."  42°  "  Bankrupt  rogue  "  was  held  not  actionable 
when  spoken  of  an  individual  as  such ; 421  but  those  words, 
when  spoken  of  one  in  trade  (a  shoemaker),  were  held  action- 
able.422 "  Bankruptly  knave  "  was  said  not  to  be  actionable 
because  the  phrase  implies  only  bankrupt-like  knave.423  And 
so  "  Cuckoldy  rogue  "  was  held  actionable.424  A  participle,  it  is 
said,  implies  an  act  done,  and  therefore  held  actionable  to  call 
one  a  "  murdering  rogue,"425  or  a  "buggering  rogue,"426  or  to 
say  he  is  robbing  or  ravishing.427 

§  166.    Words   charging  a  burning   amounting  to   arson, 
whether  at  common  law  or  by  statute,  are  actionable ; m  but 

416  Hunt  v.  Merrychurch,  2  Keb.  440;  Dorrell  v.  Grove,  Freem.  279. 

417  Little  v.  Barlow,  26  Geo.  423 ;  Pierson  v.  Stiortz,  1  Morris,  136,  and  see 
post,  note  452. 

418  Vin.  Abr.,  Act.  for  Words,  I.  a.  12. 

419  Inglebath  v.  Jones,  Cro.  Eliz.  99 ;  but  it  was  doubted  in  Robinson  v.  Mellor, 
Cro.  Eliz.  843,  if  "  bankrupt  knave  "  was  actionable,  and  tbe  phrase  was  held 
not  actionable  when  spoken  of  a  tanner.  (  York  v.  Cecil,  Browl.  16.)  The  words 
"  base,  beggarly  bankrupt  knave  "  were  held  actionable  in  Still  v.  Finch,  Cro. 
Car.  381 ;  and  so  of  the  words  bribing  knave  spoken  of  an  attorney.  ( Yardley  v. 
Mlis,  Hob.  8.) 

420  Wilson  v.  Crow,  Sty.  75. 

421  Loyal  v.  Pearse,  Cro.  Jac.  424. 
452  Langley  v.  Colson,  Godb.  151. 

423  Selby  v.  Carrier,  Cro.  Jac.  345 ;  but  said  otherwise,  Booth  v.  Leach,  Lev. 
90.     See  Vin.  Abr.,  Act.  for  Words,  I.  a.  3. 

424  The  words  were  spoken  in  London,  and  held  actionable  as  implying  his  wife 
was  a  whore.     1  Str.  471. 

425  Green  v.  Lincoln,  Cro.  Car.  318. 

429  Collier  v.  Bourn,  2  Keb.  377;  or  "perjured  knave,"  Staverton  v.  Relfe, 
Yelv.  160;  or  "  perjured  rogue,"  Orton  v.  Fuller,  Lev.  65  ;  but  where  the  words 
were,  Thou  art  a  perjured  knave,  that  is  to  be  proved  by  a  stake  that  parts  the 
lands  of  J.  S.  and  J.  D.,  it  was  doubted  if  they  were  actionable.  (Brecheley  v. 
Atkins,  Yelv.  10.) 

427  Sybthorp's  Case,  1  Rolle  Abr.  176  ;  1  Starkie  on  Slander,  72. 

428  Brady  v.  Wilson,  4  Hawks,  93  ;  Case  v.  Buckley,  15  Wend.  327;  Jones  v. 
Hungerford,  4  Gill  &  Johns.  402;  House  v.  House,  5  Har.  &  Johns.  124;  Wallace 
v.  Young,  5  Monr.  155.  Saying,  He  [plaintiff]  has  been  at  different  times  close 
about  where  C.'s  gin-house  was  burned,  in  disguise,  held  not  to  amount  to   a 


1GG  WHAT  LANGUAGE   IS   ACTIONABLE. 

charging  one  with  burning  his  own  store,429  or  the  barn  of 
another,  is  not  actionable.430  But  to  charge  one  with  burning 
his  own  store  to  defraud  the  insurers  would  be  actionable.431 

§  167,  A  general  charge  of  forgery  made  orally  is  action- 
able;432 and  so  to  charge,  "You  are  a  rogue,  for  you  forged 
ray  name,"  m  or  "  you  signed  my  name  without  my  permission."  m 
But  held  not  actionable  to  say,  "  Thou  hast  forged  my  hand," 
or  "  thou  art  a  forger." 435  The  writing  charged  to  have  been 
forged  must  it  seems  be  one  which  if  genuine  would  operate  as 
the  foundation  of  another's  liability.436  It  has  been  held  action- 
able to  charge  the  forgery  of  a  deposition,437  a  warrant,438  a  peti- 

charge  of  arson,  and  not  actionable.  (  Waters  v.  Jones,  3  Port.  442.)  See  ante, 
§  144,  subd.  c. 

429  Bloss  v.  Tobey,  2  Pick.  310;  McNab  v.  McOratk,  5  Up.  Can.  Q.  B.  Rep.  0. 
S.  516;  or  a  building  belonging  to  the  wife  of  plaintiff,  but  occupied  by  plain- 
tiff.    (Redway  v.  Gray,  31  Arerm.  292.) 

430  Barham  v.  Nethcrsall,  Yelv.  21  ;  charging  one  with  burning  a  school- 
house  was  held  actionable  ( Wallace  v.  Young,  5  Monr.  155) ;  and  so  of  a  gin- 
house.    (Waters  v.  Jones,  3  Port.  442.) 

431  1  Am.  Lead.  Cas.  117,  3d  ed. ;  and  see  Tebbetts  v.  Goding,  9  Gray,  254; 
contra,  Redway  v.  Gray,  31  Verm.  292. 

432  Alexander  v.  Alexander,  9  Wend.  141;  Andrews  v.  Woodmansee,  15  Wend. 
232;  Nichollsv.  Hayes,  13  Conn.  155;  Arnold  v.  Cost,  3  Gill  <fe  Johns.  219. 
Thou  hast  forged  a  deed  or  bond  actionable,  but  thou  hast  forged  a  writing  not 
actionable  (Motley  v.  Slany,  Keb.  273 ;  Austie  v.  Mason,  Cro.  Eliz.  554 ;  Rey- 
nell  v.  Sackfield,  2  Bulst.  132;  Aier  v.  Frost,  Rolle  R.  431 ;  S.  C.  Frost  v.  Ayer, 

3  Bulst.  265;  Andrews  v.  Bird,  Het.  31),  unless  with  an  innuendo,  a  deed. 
(Anon.  Sid.  16;  and  see  Goodale  v.  Castle,  Cro.  Eliz.  554.)  You  have  falsely 
forged  your  father's  hand,  and  thereby  falsely  have  procured  your  father's  ten- 
ants to  pay  rents  to  you  which  were  due  to  your  sister,  held  not  actionable. 
(Venardv.  Woton,  Cro.  Eliz.  166.)     See  ante,  §  144,  subd.  &. 

433  Jones  v.  Hearne,  2  Wils.  87. 

434  Creelman  v.  Marls,  7  Blackf.  281. 

435  Vin.  Abr.,  Act.  for  Words,  G.  a.  20. 

436  Jackson  v.  Weisiger,  2  B.  Monr.  214.  You  say  you  were  authorized  by  P. 
to  draw  bills  on  him.  You  never  were  authorized ;  if  you  have  any  letters 
from  him  they  are  forged.  These  words  held  not  actionable.  Mills  v.  Taylor,  3 
Bibb,  469. 

437  Atkinson  v.  Reding,  5  Blackf.  39  ;  or  forging  writs.     (Hungerfordx.  Watts, 

4  Lev.  181;  Sale  v.  3farsh,  Cro.  Eliz.  178;  contra,  Halley  v.  Stanton,  Cro.  Car. 
268.) 

439  Stone  V.  Smalcombe,  Cro.  Jac.  648 ;  Tlwmas  v.  Axuorth,  Hob.  2. 


WHAT  LANGUAGE   IS  ACTIONABLE.  167 

tion  to  the  legislature  for  a  grant  of  land  ;489  and  so  of  a  letter 
containing  these  words,  "  I  have  to  inform  you  I  have  received 
your  money,  and  want  you  to  come  and  receive  it.440 

§  168.  A  general  charge  of  being  a  murderer,441  or  of  having 
killed  another,  is  actionable.442  Thus  held  actionable  to  say 
"  thou  hast  killed  a  man  ;  "m  "  you  killed  my  brother ;  "444  "  you 
killed  one  negro  and  nearly  killed  another ; " 445  "  George  Button 
is  the  man  who  killed  my  husband  ;  ',446  "  I  will  call  him  in  ques- 
tion for  poisoning  his  own  aunt,  and  make  no  doubt  but  to 
prove  he  hath  poisoned  his  aunt ;  "447  and  the  words  "  he  killed 
my  child ;  it  was  the  saline  injection  that  did  it,"  with  an 
innuendo  that  it  was  meant  to  charge  the  plaintiff  with  felo- 

439  Alexander  v.  Alexander,  9  Wend.  14. 

440  Reeks  v.  Cooper,  3  Hawks,  587.     See  §  144,  subd.  k,  ante. 

441  Dudley  v.  Robinson,  2  Iredell,  141  ;  Vin.  Abr.,  Act.  for  Words,  G.  a.  11, 
ante,  §  144,  subd.  m.  s. ;  but  the  words,  Thou  art  a  murderer  and  a  bloody  fellow, 
and  I  am  afraid  of  you,  were  held  not  actionable.  (Id.  25.)  To  call  one  mur- 
derer because  he  murdered  a  dog,  not  actionable  ;  dictum,  Waggoner  v.  Richmond, 
Wright,  173;  see  notes  128,  166,  ante;  and  the  words  "They  are  highwaymen, 
robbers,  and  murderers,"  appearing  to  be  spoken  in  reference  to  a  transaction  not 
involving  robbery  or  murder,  were  held  not  actionable.  ( Van  Rensselaer  v.  Dole, 
1  Johns.  Cas.  279.) 

442  Johnson  v.  Robertson,  4  Port.  486  ;  Chandler  v.  Holloway,  id.  18.  It  need 
not  be  alleged  the  party  charged  to  have  been  killed  is  in  fact  dead.  ( Carroll  v. 
White,  33  Barb.  618;  see  ante,  notes  144,  354,  and  §  144,  subd.  m.  s.) 

443  Cooper  v.  Smith,  Cro.  Jac.  423  ;  Banfield  v.  Lincoln,  Freem.  2*78. 

444  Taylor  v.  Casey, "Minor,  258.  Thou  art  a  rogue  and  rascal,  and  hast  killed 
thy  wife,  held  actionable.     (Wilner  v.  Hold,  Cro.  Car.  489.) 

415  Hays  v.  Hays,  1  Hump.  402. 

""'Button  v.  Hayward,  8  Mod.  24.  Held  actionable  to  say,  Thou  didst  poison 
thy  husband  (Gardiner  v.  Spurdance,  Cro.  Jac.  438 ) ;  or  T.  (plaintiff)  killed  thy 
husband  (Toose  Case,  Cro.  Jac.  306) ;  or,  Thou  hast  killed  a  man  ( Godfrey  v.  More, 
Cro.  Eliz.  317);  or,  Thou  hast  killed  my  wife  (Talbot's  Case,  Cro.  Eliz.  823);  or, 
Thou  hast  killed  thy  wife  (  Wilner  v.  Hold,  Cro.  Car.  489). 

447  Webb  v.  Poore,  Cro.  Eliz.  569.  See  ante,  §  144,  subd.  x.  Not  actionable 
to  say,  "  It  could  be  proved  by  many  violent  presumptions  that  he  (plaintiff)  was 
the  death  of  P."  (  Weblin  v.  Meyer,  Yelv.  153) ;  or,  "  I  doubt  not  but  to  see  thee 
hanged  for  killing  Mr.  Sydman's  man  who  was  murdered."  {Anon.,  Jenk.  302.) 
It  was  held  actionable  to  say,  Thou  hast  murdered  A.  thy  late  servant  (if  A.  is 
not  dead,  or  if  there  were  no  such  person,  the  scandal  is  the  greater) ;  (Green  v. 
Warner,  3  Keb.  624) ;  or,  Thou  didst  kill  thy  master's  cook.  ( Cooper  v.  Smith, 
Cro.  Jac.  423  ;  and  see  Barons  v.  Ball,  id.  331.) 


168  WHAT  LANGUAGE   IS   ACTIONABLE. 

niously  killing  a  cliild  by  improperly  and  with  gross  negligence 
and  culpable  want  of  caution  administering  the  injection.448 

§  1G9.  A  general  charge  of  being  a  thief449  is  actionable,  as 
to  call  one  "  a  hog  thief,"450  "  a  bloody  thief."451  It  is  action- 
able to  say  of  one  he  is  a  "  thieving  person,  he  stole  and  ran 
away  ;  "452  or  "  he  is  a  thief,  he  stole  my  wheat  and  ground  it 
and  sold  the  flour  to  the  Indians  ;  "453  or  "you  are  a  thief,  you 
have  robbed  me  of  my  bricks."454  The  charge  is  not  the  less 
actionable  because  made  indirectly.455  Thus  it  was  held  action- 
able to  say  "  tell  him  (plaintiff)  he  is  riding  a  stolen  horse,  and 
has  a  stolen  watch  in  his  pocket ; " 456  or,  "  I  saw  him  take 
corn  from  A.'s  crib  twice,  and  look  round  to  see  if  any  person 
saw  him  measuring  ;  "457  or,  "  You  get  your  living  by  sneaking 
about  when  other  people  are  asleep.  What  did  you  do  with 
the  sheep  you  killed  ?  Did  you  eat  it  ?  It  was  like  the  beef 
you  got  the  negroes  to  bring  you  at  night.  Where  did  you  get 
the  little  wild  shoats  you  always  have  in  your  pen  ?  You  are 
an  infernal  roguish  rascal ; "  458  or,  "  There  is  the  man  who  stole 
my  horse  and  fetched  him  home  this  morning."459  A  charge 
by  one  partner  against  his  copartner  of  "  pilfering  "  out  of  the 

448  Edsall  v.  Russell,  5  Scott  N.  R.  801 ;  2  Dowl.  N.  S.  614  ;  4  Man.  <fc  G.  1090  ; 
and  see  Carroll  v.  White,  33  Barb.  615,  and  ante,  §  144.  The  words  "  That  rogue 
Davies,  the  apothecary,  hath  poisoned  my  uncle ;  I  will  have  him  digged  up 
again,  and  hang  him,"  held  actionable.     Davies  v.  Okeharn,  Sty.  245. 

449  Dudley  v.  Robinson,  2  Iredell,  141  ;  and  see  ante,  no'te  417;  or  of  having 
been  a  thief,  ante,  note  337  ;  and  see  ante,  §  144,  subd.  p.  r.  z.  bb.  dd.  ee. 

450  Hogg  v.  Wilson,  1  N.  &  M.  (So.  Car.),  216. 

451  Fisher  v.  Rottereau,  2  McCord,  189. 

452  Alley  v.  Neehj,  5  Blackf.  200  ;  and  see  ante,  note  417. 

463  Parker  v.  Lewis,  2  Greene  (Iowa),  311. 

464  Sloman  v.  Dutton,  lOBing.  402;  4  M.  cfe  Sc.  174.  Ayres  is  a  thief  and  hath 
stolen  my  apple  trees,  actionable.     Ayres  Case,  2  Brownl.  280. 

456  McKevnon  v.  Greer,  2  Watts,  352 ;  Maysonv.  Sheppard,  12  Rich.  Law 
(So.  Car.),  254.  I  believe  he  will  steal,  and  I  believe  he  did  steal,  amount  to  a 
charge  of  larceny.  {Dottarer  v.  Bushey,  16  Penn.  St.  R.  204;  and  ante,  §  144, 
subd.  bb.) 

460  Davis  V.  Johnston,  2  Bailey,  579. 

457  Jones  v.  McDowell,  4  Bibb,  188. 

458  Morgan  v.  Livingston,  2  Rich.  573. 
468  Bonner  v.  Boyd,  3  Har.  <fc  J.  278. 


WHAT  LANGUAGE   IS   ACTIONABLE.  169 

store,  held  actionable  ;m  and  held  actionable  to  say  of  one  "  he 
look  my  wood,  and  is  guilty  of  any  and  everything  that  is  dis- 
honest;"461 or,  "he  robbed  the  United  States  mail;"462  and  it 
is  actionable  to  charge  one  having  the  custody  of  goods  with 
stealing  them ; 463  but  held  not  actionable  to  charge  a  weaver 
with  stealing  filling  sent  to  his  house  to  be  woven  into  cloth.464  j 

§  170.  A  charge  of  larceny,  that  is,  the  taking  animo  furan- 
di  the  personal  property  of  another,  the  subject  of  larceny,  is  ac- 
tionable ; 465  thus  the  words,  "  You  have  stolen  my  belt,"  m  or 
"  my  boards,"  m  or  "  my  tea,"  m  were  held  actionable.  And  so  of 
the  words  "  You  robbed  me,  for  I  found  the  thing  you  done  it 
with  ;" 469  or,  "  You  robbed  W. ;  "  47°  but  the  words  "  He  robbed 
the  treasury  and  bought  a  farm  with  it,471  or  "  Bear  witness  he 

460  Becket  v.  Sterrett,  4  Blackf.  499.  Actionable  to  say,  She  is  as  very  a  thief 
or  a  worse  thief  than  any  that  robbeth  by  the  highway.  {Ratcliffe  v.  Shubley, 
Cro  Eliz.  224.) 

461  Dottarer  v.  Bushey,  16  Penn.  St.  Rep.  204. 

462  Jones  v.  Chapman,  5  Blackf.  88. 

463  Gill  v.  Bright,  6  Monr.  130. 

464  Havm  v.  Smith,  4  B.  Monr.  385 ;  but  see  ante,  in  note  143,  and  §  144.  To 
charge  one  with  stealing  cotton  held  actionable,  although  the  charge  was  made 
in  allusion  to  cotton  which  the  plaintiff  had  to  gin  for  the  defendant's  brother 
(Stokes  v.  Stuckey,  1  McCord,  562) ;  and  as  an  overseer  of  an  estate  may  be  guilty 
of  stealing  the  goods  of  his  employer  intrusted  to  him,  it  was  held  actionable  to 
charge  an  overseer  with  stealing  corn  of  his  employer.  ( Wheatley  v.  Wallis,  3 
Har.  &  J.  1.) 

405  Galloway  v.  Courtney,  10  Richard.  414;  BlanchardY.  Fisk,  2  N.  H.  398; 
Bonner  v.  Boyd,  3  Har.  &  Johns.  278 ;  Wlieatley  v.  Wallace,  3  id.  1 ;  Stokes  v. 
Stuckey,  1  M'Cord,  562  ;  Gill  v.  Bright,  6  Monroe,  130 ;  Gaid  v.  Fleming,  10  Ind. 
253;  and  see  ante,  §  144,  subd.  p.  z.  bb,  dd,  ee,  and  note  354.  A  charge  of 
taking  clothes  animo  furandi  from  a  dead  body,  held  actionable.  ( Wonson  v. 
Say  ward,  13  Pick.  402.) 

468  St.  Martin  v.  Dcsnoyer,  1  Min.  156;  and  so  of  the  words,  Thou  hast  stolen 
my  goods,  and  I  will  have  thy  neck.     {Fleming  v.  Jales,  2  Brownl.  280.) 

407  Burbank  v.  Horn,  39  Maine  (4  Heath),  232. 

468  Coleman  v.  Flaystcad,  36  Barb.  26. 

459  Rowcliffe  v.  Edmonds,  7  M.  &  W.  12. 

470  Tomlivson  v.  Brittlcbank,  1  Nev.  &  M.  455;  4  B.  &  Adol.  630.  Thou  hast 
robbed  the  church,  and  thou  hast  stolen  the  lead  off  from  the  church,  held  action- 
able. (Benson  v.  Morley,  Cro.  Jac.  153.)  And  so  of  the  words:  He  hath  robbed 
the  church.     (Sibthorpe's  Case,  Jones,  366.) 

471  Allen  v.  Hillman,  12  Pick.  101,  and  see  in  8  144,  note  232. 


170  WHAT   LANGUAGE   IS   ACTIONABLE. 

hath  stolen  my  cloth,"  held  not  actionable.472  Charging  plain- 
tiff with  having  stolen  a  barrel  of  pork  may  or  may  not  be 
actionable,  according  to  the  circnm stances  of  the  publica- 
tion ; 473  but  semble  to  render  them  non-actionable  it  must 
appear  that  the  facts  could  not  in  any  view  amount  to  a  fel- 
ony.474 Where  the  words  were  "  I  have  lost  a  calf-skin  out  of 
my  cellar.  *  *  *  There  was  no  one  in  the  cellar  but 
you,  Bormnan  and  Gray.  I  do  not  blame  you  nor  Gray,  but 
Bornman  must  have  taken  it,"  they  were  held  actionable.475 
Charging  one  with  stealing  a  key  out  of  the  lock  of  a  door, 
held  actionable.476 

472  Bury  v.  Wright,  Yelv.  126. 

473  Phillips  v.  Barber,  7  Wend.  439;  and  see  §  144.  Ton  (plaintiff)  have 
stolen  a  file  of  bills  out  of  my  desk,  with  an  innuendo  that  by  file  of  bills  was 
intended  a  file  of  unsatisfied  accounts,  held  not  actionable.  (Blanehard  v.  Fink, 
2  N.  Hamp.  398  ) 

474  Laurie  v.  Wells,  7  Wend.  175  ;  Alexander  v.  Alexander,  9  id.  141 ;  Case  v. 
Buckley,  15  id.  327.  B.  spoke  of  A.,  that  A.  and  B.  and  one  C.  sat  down  to 
gamble  in  a  house  in  D.,  and  while  there,  C.  took  from  his  pocket-book  a  five  dol- 
lar bill  and  proposed  to  bet  one  dollar;  that  after  the  bill  was  put  down  on  a 
chance  it  was  missing,  and  search  was  made  for  it  but  it  could  not  be  found, 
whereupon  the  parties  agreed  to  submit  to  a  search,  which  was  made  but  the  bill 
was  not  found  ;  that  after  this  search,  all  the  parties  went  out  of  the  house  to 
search  for  the  missing  bill ;  near  the  window  they  found  a  pocket-book  with  the 
clasp  unfastened,  and  in  it  was  the  missing  bill ;  that  C.  took  out  the  bill  and 
handed  the  pocket-book  to  A.,  who  took  it,  and  then  said,  "  Boys,  don't  tell  this 
on  me,  for  if  you  do  it  will  ruin  me."  Held  that  these  words  did  not,  of  them- 
selves, import  a  charge  of  larceny.     (Prichard  v.  Lloyd,  2  Carter,  154.) 

476  Bornman  v.  Boyer,  3  Binn.  515  ;  ante,  §  144,  subd.  dd. 

476  Hoskins  v.  Tarrcnce,  5  Blackf.  417,  this  decision  was  on  the  hypothesis 
that  stealing  a  key  out  of  the  lock  of  a  door  is  larceny.  It  was  so  held  in  Rex 
v.  Hedges,  1  Leach  C.  C.  201,  4  ed.,  but  is  said  to  be  "  clearly  wrong."  Heard  on 
Libel,  p.  37,  note  4.  Actionable  to  say :  You  never  thought  well  of  me  since  G. 
[plaintiff]  did  steal  my  lamb  (Grave's  Case,  Cro.  Eliz.  289) ;  or,  1  dealt  not  so  un- 
kindly by  you  [plaintiff]  when  you  stole  a  sack  of  corn.  {Cooper  v.  Hakewell,  2 
Mod.  58.)  J.  W.  [plaintiff]  was  in  question  for  stealing  a  mare,  and  hue  and  cry 
went  out  after  him,  and  he  durst  not  show  his  face  hereabouts,  doubtful  if  action- 
able. (Gray  v.  Wayle,  Sty.  159.)  A.  said  to  B.  [the  defendant],  My  sheep  were 
feloniously  stolen  away ;  B.  replied,  I  know  who  took  them — it  was  J.  S. ;  held  ac- 
tionable. (Nelly  v.  Hender,  3  Bulst.  83.)  Go  follow  suit  against  W.  [the  plaintiff  ] 
for  stealing  thy  two  kine,  and  hang  him — held  actionable.  (  Willymote  v.  Welton, 
Cro.  Eliz.  904.)   So  were  the  words,  "  He  is  infected  of  the  robbery  and  murder 


WHAT  LANGUAGE   IS  ACTIONABLE.  171 

§  171.  A  direct  charge  of  perjury  is  actionable  per  se™  and 
it  is  actionable  to  say  of  one,  "  The  Reverend  Thomas  Smith  is 
a  perjured  man,"478  or  "  He  perjured  himself,"479  or  "  He  com- 
mitted perjury  by  swearing  in  his  vote  at  the  school  district 
meeting;480  and  where  the  defendant,  speaking  of  an  allegation 
in  an  affidavit  made  by  the  plaintiff,  said  it  was  not  true  and 
plaintiff'  had  perjured  himself,  were  held  to  be  actionable  if  the 
intent  was  to  impute  perjury.481     The  words  "he  swore  a  false 

lately  committed,  and  doth  smell  of  the  murder.  {Haidey  v.  Sidenham,  Yin.  Abr. 
Act.  for  Words,  P.  a.  14.)  You  might  have  known  your  own  sheep  and  not  have 
stolen  mine,  court  divided  if  actionable  or  not.  {Thompson  v.  Knott,  Yelv.  144.) 
Thou  [plaintiff]  hast  stole  my  mare  or  was  consenting  to  it,  held  not  actionable ; 
the  plaintiff  might  consent  and  yet  be  faultless,  and  the  latter  part  of  the  sentence 
controlled  the  first.  (Anon.,  Xoy,  172.)  S.  [plaintiff]  did  steal  a  mare,  or  else  G. 
is  forsworn,  not  actionable,  not  being  a  direct  charge  of  stealing.  {Sparkham  v. 
Rye,  Cro.  Jac.  532.) 

477  JVewbit  v.  Statuck,  35  Maine  (5  Red.),  315 ;  Bell  v.  Farnsworth,  11  Humph. 
608;  Eccles  v.  Shannon,  4  Harring.  193;  Cooky.  Bostwick,  12  Wend.  48;  Hop- 
kins v.  Beadle,  1  Cai.  347;  Commons  v.  Walters,  1  Port.  377;  Hall  v.  Montgom- 
ery, 8  Ala.  510  ;  Haws  v.  Stanford,  4  Sneed,  520;  Lee  v.  Robertson,  1  Stew.  138  ; 
Chapman  v.  Gillett,  2  Conn.  40 ;  as  to  perjured  knave,  see  note  426,  ante.  A., 
speaking  with  reference  to  a  complaint  preferred  by  him  before  the  grand  jury 
against  B.,  said  that  "  he  went  before  the  grand  jury  and  asked  them  if  they 
wanted  any  more  witnesses,  and  they  said  they  had  witnesses  enough  to  satisfy 
them  ;  "  held,  actionable,  if  he  thereby  meant  to  impute  the  perjury  to  B.  {Rundell 
v.  Butler,  7  Barb.  253.)  Saying  of  plaintiff  he  was  under  a  charge  of  prosecution 
for  perjury,  and  that  G.  W.  (an  attorney  of  that  name)  had  the  attorney-general's 
directions  to  prosecute  the  plaintiff  for  perjury,  held  actionable  after  verdict  for 
plaintiff.  {Roberts  v.  Camden,  9  East,  93.)  And  saying  "  I  would  not  swear  to 
what  C.  W.  has  for  the  town  of  R. ;  P.  W.  is  honestly  mistaken  but  C.  W.  is  wil- 
ful," imputes  perjury  to  C.  W.  and  is  actionable.  (  Walrath  v.  Nellis,  17  How.  Pr. 
R.  72.)  See  ante,  §  144,  subd.  u.  A  charge  of  subornation  of  perjury  is  action, 
able  (Cro.  Jac.  158  ;  Beers  v.  Strong,  Kirby,  12);  as,  You  have  caused  this  boy 
to  perjure  himself.     (Brownl.  2.) 

476  Cummin  v.  Smith,  2  S.  &  R.  440. 

479  Sanford  v.  Gaddis,  13  111.  329.  I  will  prove  thee  a  perjured  knave,  action- 
able. (Staverton  v.  Rclfe,  Yelv.  160.)  O.  [plaintiff]  says  I  am  a  perjured  rogue; 
he  is  a  perjured  rogue  as  well  as  I — held  actionable.  {Orton  v.  Fuller,  Lev.  65.) 
If  I  list  I  can  prove  him  perjured — held  not  to  impute  perjury,  and  therefore 
not  actionable.     (Davis'  Case,  Hutt.  127.) 

4B0  Crawford  v.   Wilson.,  4  Barb.  504. 

481  Cook  v.  Bostwick,  12  Wend.  48.  The  words  "  he  has  delivered  false  evi- 
dence and  untruths  in  his  answer  to  a  bill  in  chancery,"  held  not  actionable. 
(1  Rolle  Abr.  70 ;  3  Inst.  167.) 


172  WHAT   LANGUAGE   IS  ACTIONABLE. 

oatli,"  or  "  he  swore  a  lie,"  or  "  he  swore  false,"  are  no{  action- 
able per  se,  nor  can  an  action  be  maintained  for  them  merely 
by  an  innuendo  that  they  imputed  or  were  intended  to  impute, 
perjury.  There  must  be  an  averment  and  colloquium  of  a 
judicial  proceeding.482  To  say  of  one,  he  is  "  mainsworn,"  was' 
held  actionable  when  spoken  at  a  place  where  mainsworn 
meant  perjured.483-  A  charge  of  being  forsworn  is  not  action- 
able ^rs*?/  it  imports  only  " false  swearing,"  and  not  "per- 
jury." But  a  charge  of  "  false  swearing  "  may  convey  to  the 
minds  of  the  hearers  an  imputation  of  perjury,  and  when  it 
does  such  a  charge  is  actionable  per  se  j m  as  where,  after  a 
charge  of  false  swearing,  the  defendant  added  "  I  will  attend 

462  Packer  v.  Spangler,  2  Binn.  60  ;  Sheely  v.  Biggs,  2  Har.  &  J.  363  ;  Power  v. 
Miller,  2  McCord,  220 ;  Martin  v.  Melton,  4  Bibb,  99:  Slider  v.  Wilson,  10  Ire. 
92:  B'eswick  v.  Chappel,  8  B.  Mod.  486  ;  Roella  v.  Follow,  7  Blackf.  377  ;  Vaughan 
v.  Havens,  8  Johns.  109;  Chapman  v.  Smith,  13  Johns.  78;  Hopkins  v.  Beadle, 
1  Cai.  347;  Phincle  v.  Vaughan,  12  Barb.  215  ;  Barger  v.  Barger,  18  Penn.  State 
Rep.  489  ;  Blair  v.  Sharp,  Breese,  1 1 ;  McManus  v.  Jackson,  28  Miss  (7  Jones) 
56;  Watson  v.  Hampton,  2  Bibb,  319  ;  Shinloub  v.  Ammerman,  7  Inch  347  ;  Me- 
bane  v.  Sellars,  3  Jones'  Law  (N.  C),  199  ;  Harris  v.  Woody,  9  Mis.  113;  Horn  v. 
Poster,  19  Ark.  346;  Harvey  v.  Boies,  1  Penn.  12;  Dalrymple  v.  Lofton,  2  Speer, 
588;  Shaffer  v.  Kuitzer,  1  Binn.  537;  Hall  v.  Montgomery,  8  Ala.  510;  Walrath 
v.  Nellis,  17  How.  Pr.  R.  72;  Ward  v.  Clark,  2  Johns.  10;  Stafford  r.  Grier,  1 
Johns.  505;  Robertson  v.  Lea,  1  Stew.  141,  bat  see  Rue  v.  Mitchell,  2  Dall.  58; 
Canterbury  v.  Hill,  4  Stew.  &  Porter,  224;  Smaley.  Hammon,  lBulst.  40;  Lewis  v. 
Soule,  3  Mich.  514 ;  Hall  v.  Weed»n,  8  Dowl.  &  R.  140;  Colonies  Case,  Cro.  Jac. 
204.  "  Mr.  H.'s  oath  is  not  to  be  taken,  for  he  has  been  a  forsworn  man.  I  can 
bring  people  to  prove  it,  and  they  that  know  him  will  not  sit  in  the  jury-box 
with  him,"  without  any  colloquium,  referring  the  words  to  the  conduct  of  the 
plaintiff  as  a  juryman,  and  no  special  damage,  held  not  in  themselves  actionable, 
and  judgment  arrested.  (Hall v.  Weedon,  8  D.  &  R.  140.)  "  Stanhope  hath  but 
one  manor,  and  that  he  got  by  swearing  and  forswearing."  (Stanhope  v.  Blith,4: 
Co.  15.)  In  Arkansas,  by  statute,  to  charge  a  person  with  having  sworn  falsely 
or  sworn  a  lie  is  actionable,  without  an  averment  or  proof  of  special  damage,  or 
a  colloquium.  (Carlock  v.  Spencer,  2  Eng.  12  ;  McGough  v.  Rhodes,  7  Eng.  625.) 
And  so  in  Mississippi.     Crawford  v.  Mellton.  12  S.  <fe  M.  328.     See  ante,  §  153. 

M  Hob.  12. 

464  Sherwood  v.  Chacc,  11  Wend.  38;  Crookshank  v.  Gray,  20  Johns.  344 ; 
McClaughry  v.  Wetmore,  6  Johns.  82  ;  Jacobs  v.  Tyler,  3  Hill,  572 ;  Coons  v.  Rob- 
inson, 3  Barb.  625  ;  Morgan  v.  Livingston,  2  Rich.  573 ;  Hillhouse  v.  Dunning,  6 
Conn.  391.  Defendant  said,  Thou  art  a,  forsworn  fellow;  plaintiff  answered,  Will 
you  say  that  I  am  perjured  1  defendant  said,  Yes,  if  you  will  have  it  so — held  not 
actionable.     (Levermore  v.  Martin,  Cro.  Eliz.  297.) 


WHAT   LANGUAGE   IS  ACTIONABLE.  173 

to  the  grand  jury  about  it;"483  or,  "If  you  had  your  deserts 
you  would  have  been  dealt  with  in  the  time  of  it ;  "m  or,  "  For 
which  you  now  stand  indicted ;  "^  or,  "  To  my  injury  $600 ; " 488 
or,  "  and  done  it  meaning  to  cut  my  throat ;  " m  or,  "  and  I 
will  put  him  through  for  it  if  it  costs  me  all  I  am  worth." m 
And  held  actionable  to  say  of  one,  "  Thou  art  a  forsworn  man. 
I  will  teach  thee  the  price  of  an  oath,  and  will  set  thee  on  the 
pillory ;  " m  or,  "  You  swore  a  lie,  and  I  can  prove  it,"  used 
in  reference  to  a  judicial  proceeding  in  which  the  plaintiff  had 
testified  as  a  witness;492  or,  under  similar  circumstances,  the 
words,  "He  swore  a  lie."493  Where  the  charge  is  of  false 
swearing  before  a  particular  court  or  tribunal,  or  in  a  particular 
proceeding,  naming  it,  the  charge  is  actionable  if  the  court  or 
tribunal  named  is  one  authorized  to  administer  an  oath,  or  if 
the  proceeding  named  is  a  judicial  proceeding ;  thus  it  has  been 
held  actionable  to  say  of  one,  he  swore  false  before  the  grand 
jury  ;494  or,  "  Thou  art  a  forsworn  knave,  and  I  will  prove  thee  to 
be  forsworn  in  the  spiritual  court;  "495  or,  "  Thou  wast  forsworn 
before  my  Lord  Chief  Justice  in  evidence;"496  or,  "  before  a 
justice  of  the  peace  ; " 497  or,  "  in  Ilston  Court,"  a  court  leet  so 
named  ;498  or,  "  I  had  a  lawsuit  with  A.,  and  B.  (the  plaintiff) 

485  G'ibnan  v.  Lowell,  8  Wend.  573. 

486  Phinele  v.  Vavghan,  12  Barb.  215. 

487  Pelton  v.  Ward,  3  Cai.  73. 

488  Jacobs  v.  Tyler,  3  Hill,  572. 

489  Coons  v.  Robinson,  3  Barb.  625. 

490  Crone  v.  Angell,  14  Mich.  340. 

491  1  Starkie  on  Slander,  91. 

4W  Lcuisv.  Black,  27  Mass.  (5  Cush.)  425  ;  Rhineheart  v.  Potts,  7  Ired.  403; 
Rainey  v.  Thornbury,  7  B.  Monr.  475;  Sherwood  v.  Chace,  11  Wend.  38. 

493  Harris  v.  Purdy,  1  Stew.  231 ;  and  see  Wilson  v.  Harding,  2  Blackf.  190; 
Gibbs  v.  Tucker,  2  A.  K.  Marsh,  219  ;  and  6  T.  R.  691. 

494  Perselly  v.  Bacon,  20  Miss.  330. 

495  Shaw  v.  Thompson,  Cro.  Eliz.  609;  and  see  Rex  v.  Foster,  Russ.  &  R.  Cr. 
Cas.  Res.  459 ;  Stat.  40  Geo.  4,  ch.  76.  False  swearing  before  an  ecclesiastical 
tribunal  is  not  perjury  in  Pennsylvania.  (Harvey  v.  Boies,  1  Penn.  St.  R.  12.) 
contra  in  Connecticut.     (Chapman  v.  Gillet,  2  Conn.  40.) 

496  Le.  127. 

497  Gurneth  v.  Berry,  3  Lev.  166 ;  4  Coke,  17. 

498  Marshal  v.  Dean,  Cro.  Eliz.  720. 


174:  WHAT  LANGUAGE   IS   ACTIONABLE. 

swore  falsely  against  me,  and  I  have  advertised  him  as 
sucli ; " 4"  or,  "  You  swore  false  at  the  trial  of  your  brother 
John."500  Held  not  actionable  to  say  of  one,  "Thou  wert 
forsworn  at  Whitechurch  court ; " 501  or,  "  Thou  art  a  false  and 
forsworn  knave,  and  that  I  will  prove,  for  thou  forswore  thy- 
self against  Peter  Rumball  in  the  hundred  court."502  An  arbi- 
tration is  a  judicial  proceeding,  and  false  swearing  in  such  a 
proceeding  is  perjury ;  therefore,  to  charge  false  swearing  in  such 
a  proceeding  is  actionable ; 503  but  perjury  cannot  be  predicated 
of  evidence  in  a  controversy  relative  to  pre-emption  rights  be- 
fore the  registers,  &c,  of  the  land  office,  and  therefore  a  charge 
of  false  swearing  in  such  a  controversy  is  not  actionable.504  Or- 
dinarily words  are  actionable  which  imply  in  their  customary 
import  that  a  false  oath  has  been  taken  in  a  judicial  proceed- 
ing,505 as,  you  swore  false  in  court,506  and  this,  although  the  pro- 
ceeding referred  to  never  had  any  existence.507  Saying  Of  one, 
he  swore  to  a  damned  lie,  but  I  am  not  liable  because  I  have 


499  Magec  v.  Stark,  1  Hump.  506.  The  words,  I  had  a  lawsuit,  imply  a  judicial 
proceeding.     (Id.) 

600  Fowle  v.  Robbing,  12  Mass.  498.  The  words  were  held  actionable  after 
verdict ;  and  see  Cro.  Car.  378 ;  but  the  words,  you  swore  falsely  on  the  trial  of 
a  case  between  me  and  A.  before  Squire  J.,  were  held  not  actionable.  (Bal- 
rymple  v.  Lofton,  2  Speer,  588.) 

601  Cro.  Car.  378,  because  it  did  not  appear  that  Whitechurch  court  was  a  court 
of  record,  and  for  the  same  reason  the  words  "  He  has  forsworn  himself  in  a 
Leake  court,"  were  held  not  actionable.  (1  Rolle  Abr.  39  ;  6  Bac.  Abr.  207  )  But 
the  words,  "  A.  C.  is  a  forsworn  man,  and  hath  taken  a  false  oath  in  his  deposi- 
tion at  Tiverton,  where  he  waged  his  law  against  me,"  were  held  actionable 
because  the  forswearing  appeared  to  amount  to  perjury.     (Cro.  Jac.  204.) 

502  Core  v.  Morton,  Yelv.  27.     So  ruled  after  verdict. 

603  Moore  v.  Horner,  4  Sneed,  491 ;  Eons  v.  Rouse,  1  Wend.  475  ;  Bullock  v. 
Koon,  9  Cow.  30;  and  see  Sanfordv    Gaddis,  13  111.  329. 

604  Hall  v.  Montgomery,  8  Ala.  510. 

605  Cass  v.  Anderson,  33  Verm.  182. 

606  Hamilton  v.  Bent,  1  Hayw.  (N.  C.)  116  ;  see  ante,  note  500. 

607  Bricker  v.  Potts,  12  Penn.  St.  R.  200;  Henry  v.  Hamilton,  7  Blackf.  506. 
And  though  an  affidavit  for  a  warrant  be  insufficient  to  justify  the  granting  of  it, 
an  action  may  be  maintained  for  imputing  perjury  in  making  the  affidavit,  if  any 
fact  set  forth  in  it  be  material  to  the  application.  (Bayton  v.  Rockwell,  11  Wend. 
140;  and  see  Bell  v.  Farnsworth,  11  Humph.  G08.) 


WHAT  LANGUAGE  IS   ACTIONABLE.  175 

not  said  in  what  suit  he  testified,  was  held  not  actionable.508  To 
say  to  a  witness  whilst  giving  his  testimony  on  a  trial  in  court, 
"that  is  a  lie;"509  or,  "  I  believe  you  swear  false.  It  is  false 
what  you  say  ;" 510  or,  "You  have  sworn  a  manifest  lie,"511  is 
actionable. 

Swearing  falsely  as  to  immaterial  matter  does  not  amount 
to  perjury,  and  therefore  to  charge  false  swearing  as  respects 
matter  which  is  immaterial  to  the  issue  involved,  cannot  in  any 
event  or  under  any  circumstances,  be  actionable  ;512  thus,  saying 
of  one  that  on  a  certain  trial  he  testified  to  what  was  false,  that 
the  matter  so  testified  to  was  immaterial,  but  that  he,  the  party 
testifying,  showed  great  disregard  for  the  truth,  was  held  not 
actionable.513  The  test  of  materiality  is  not  whether  the  wit- 
ness believes  his  testimony  to  be  material,  but  whether  if  false 
he  can  be  indicted  for  perjury.  If  the  testimony  is  in  fact  im- 
material, it  cannot  be  perjury,  though  it  may  be  false,  and 
whatever  may  be  the  opinion  of  the  witness.514  Another  essen- 
tial element  of  perjury  is,  that  the  oath  alleged  to  have  been 
broken  was  administered  by  competent  authority,  and  there- 
fore to  charge  the  breach  of  an  oath  not  administered  by  com- 
petent authority  would  not  be  actionable.513 

§  172.  Ordinarily,  and  in  the  absence  of  any  statutory  pro- 
vision, words  published  orally  charging  a  woman  with  want  of 

608  Muchler  v.  Mulhollen,  Supp.  to  Hill  &  Denio's  Rep.  263. 
503  Mower  v.  Watson,  11  Verm.  536. 
510  Cole  v.  Grant,  3  Harr.  327. 

611  Kean  v.  McLaughlin,  2  S.  &  R.  469  ;  McClauyhry  v.  Wetmore,  6  Johns.  82, 
contra  Badgley  v.  Hedges,  1  Penn.  233. 

612  Horn  v.  Foster,  19  Ark.  346  ;  Darling  v.  Banks,  14  111.  46  ;  Wilson  v.  Oli- 
phant,  Wright,  153  ;  Crookshank  v.  Gray,  20  Johns.  344;  Ross  v.  Rouse,  1  Wend. 
475  ;  Dayton  \.  Rockwell,  11  Wend.  140  ;  Power  v.  Price,  12  Wend.  500  ;  S.  C, 
16  Wend.  460;  Roberts  v.  Champlin,  14  Wend.  120;  Wilson  v.  Cloud,  2  Speer,  1; 
Owen  v.  McKean,  14  111.  459 ;  McQough  v.  Rhodes,  7  Eng.  625. 

613  Stone  v.  Clark,  21  Pick.  51;  and  see  McKinley  v.  Rob,  20  Johns.  351 ; 
Smith  v.  Smith,  8  Ired.  29;    Wilson  v.  Cloud,  2  Speer,  1. 

614  Ross  v.  Ji'onse,  1  Wend.  475.  Perjury  may  be  alleged  in  swearing  to  a 
promise  within  the  statute  of  frauds,  and  therefore  false  swearing  as  to  such  a 
promise  may  be  actionable.     (Howard  v.  Sexton,  4  Selden,  157.) 

615  Jones  v.  Marrs,  11  Humph.  214;  and  see  Vanslcenburgh  v.  Kortz,  10  Johns. 
167  ;  Niven  v.  Mann,  13  Johns.  48;  Cro.  Car.  378  ;   1  Rolle  Abr.  39. 


176  WHAT   LANGUAGE   IS  ACTIONABLE. 

chastity  are  not  actionable  per  se ; 516  as,  thus,  except  in  the 
City  of  London  and  Borough  of  Southwark  it  is  not  actionable 
to  call  a  woman  a  whore,517  or  prostitute,  or  common  prosti- 
tute,518 or  to  charge  an  unmarried  woman  with  having  had  a 

616  1  Starkie  on  Slander,  28  ;  Byron  v.  Elmes,  2  Salk.  693 ;  W.  v.  L„  2  Nev. 
&  M.  204  ;  Berry  v.  Carter,  4  Stew.  &  Port.  387;  Elliot  v.  AUsbury,  2  Bibb,  473 ; 
contra  in  Connecticut  (Frisbie  v.  Fowler,  2  Conn.  707),  in  Kentucky  since  the 
statute  of  1811  (McGee  v.  Wilson,  Litt.  Sel.  Cas.  187.;  Smalley  v.  Anderson,  2 
Monr.  56),  in  Illinois  (Sjyencer  v.  Monasters,  16  111.  405),  in  Missouri  (Moberly  v. 
Preston,  8  Mis.  462;  Stieber  v.  Wensel,  19  Mis.  513),  in  Ohio  (Malone  v.  Stewart, 
15  Ohio,  319;  Wilson  v.  Bobbins,  Wright,  40;  Wilson  v.  Bunyon,  id.  351;  Sex- 
tonY.  Todd,  id.  317),  in  Maryland  (Terry  v.  Bright,  4  Md.  430),  in  Alabama  (Sid- 
greaves  v.  Myatt,  22  Ala.  617  ;  but  see  Berry  v.  Carter,  4  Stew,  ife  Port.  387),  in 
Indiana  {Shields  v.  Cunningham,  1  Blackf.  86;  Worth  v.  Butler,  7  «£  251 ;  Rode- 
buryh  v.  Ho'li/igsworth,  6  Ind.  639),  in  North  Carolina  (MeBrayer  v.  2KK,  4  Ired. 
136  ;  Snow  v.  Witeher,  9  id  346),  in  South  Carolina  ( Watts  v.  Greenlee,  2  Dev. 
115;  Freeman  v.  Price,  2  Bailey,  115),  in  Iowa  (Bcardsley  v.  Bridgman,  17  Iowa, 
290 ;  Cleveland  v.  Betweiler,  18  id  299 ;  Coz  v.  Bunker,  Morris,  369  ;  i)ai%  v.  ifey- 
noWs,  4  G.  Greene,  354*;  Freemanr.  Taylor,  4  Iowa,  424;  &mt£%  v.  Silence,  id.  321.) 

617  12  Mod.  106;  Holt  R.  40;  Keb.  418;  Sid.  97;  Bobertson  v.  Powell,  2  Selw. 
N.  P.  1224;  Alsop  v.  A/sop,  5  Hurl.  &  Nor.  534:  Williams  v.  Holdridge,  22  Barb. 
397;  Linvey  v.  Malton,  13  Texas,  449;  Underhill  v.  Welton,  32  Verm.  40;  i%d 
v.  5ren<,  3  Brev.  241;  contra  Pledger  v.  Hatehcoek,  1  Kelly,  550;  Coa;  v.  Bunker, 
1  Morris,  269.  Drunken  whore  held  actionable  (  Williams  v.  Greenwale,  3  Dana, 
432) ;  and  so  was  whore.  (Smith  v.  Silence,  4  Iowa,  321 ;  A"e%  v.  Dillon,  5  Ind. 
426;  Clarke  v.  Mount,  Opinions  in  the  Mayor's  Co't,  18.)  The  following  words 
have  been  held  actionable:  You  are  a  whore.  I  can  have  a  better  whore  for  a 
groat ;  you  get  your  living  by  your  tail ;  or,  You  are  a  whore,  and  have  played 
the  whore  with  so  many  men  you  cannot  number  them ;  or,  Thou  art  a  whore 
and  hast  been  carted;  or,  Thou  art  a  whore  and  hast  been  in  Bridewell;  or, 
Thou  art  a  whore,  and  hast  emptied  thy  cask  in  the  country ;  or,  Thou  art  a 
whore,  and  thy  plying  place  is  in  Cheapside,  where  thou  gettest  40s.  a  day. 
(Vin.  Abr.  Act.  for  Words,  D.  a.  45,  39,  42.)  The  words  import  more  than  the 
bare  calling  a  woman  whore.  (Hicks  v.  Joyce,  Sty.  394.)  Common  whore 
held  actionable.  (Green  v.  How,  Sty.  323.)  And  held  actionable  to  call  one  a 
whore  who  held  a  copyhold  dum  casta  vixerit.  (Boys  v.  Boys,  Sid.  214.)  But 
held  not  actionable  to  say  to  or  of  a  woman,  "  You  are  a  whore,  and  keep  a  man 
to  lie  with  you  "  (Gascoigne  v.  Ambler,  2  L'd  Raym.  1004) ;  or,  "  She  is  a  whore, 
and  had  a  bastard  by  her  father's  apprentice."  (Graves  v.  Blanchard,  2  Salk. 
696;  and  see  Anon.,  id.  694.)  Calling  a  woman  "  whorish  bitch,"  actionable  in 
Alabama.  (Scott  v.  McKinnish,  15  Ala.  662.)  To  call  a  woman  a  strumpet  is  not 
equivalent  to  calling  her  a  whore.  ( Williams  v.  Bryant,  4  Ala.  44.)  See  in  note 
6U,post. 

518  Brooker  v.  Coffin,  5  Johns.  188  ;  Wilby  v.  Elston,  8  C.  B.  142  ;  7  Dowl.  & 
L.  143  ;   1  Starkie  on  Slander,  28.     See  ante,  §  144,  subd.  y. 


WHAT  LANGUAGE   IS   ACTIONABLE.  177 

bastard,519  or  to  call  a  woman  a  bawd,520  or  to  charge  an  unmar- 
ried woman  with  fornication,521  or  a  married  woman  with  adul- 
tery,522 or  a  woman  with  being  of  a  wanton  and  lascivious  dis- 
position,523 or  to  say  of  a  woman,  she  was  hired  to  swear  the 
child  on  me  ;  she  has  had  a  child  before  this,  when  she  went  to 
Canada ;  she  would  come  damned  near  going  to  the  state 
prison.524  But  it  has  been  held  actionable  to  say  of  a  woman, 
she  is  a  "loose  woman,"525  or  to  charge  conduct  amounting  to 
open  and  gross  lewdness,526  or  to  say  of  a  married  woman, 
she  slept  with  one  not  her  husband,527  or  to  charge  an  unmarried 
woman  with  being  in  the  family  way ; 528  and  adding,  I  can 
prove  it  by  A.  that  she  has  been  taking  camphor  and  opium 
pills  to  produce  an  abortion  ;529  or,  she  had  two  or  three  little 


6,9  Vin.  Abr.  Act.  for  Words,  D.  a.  19,  23 ;  Graves  v.  Blanchard,  2  Salk.  696, 
in  note  517  ante  ;  and  saj'ing  to  a  married  woman,  "  Thou  bold  cullobine,  bastard- 
bearing  whore,  thou  didst  throw  thy  bastard  into  the  dock  at  Whitechapel,  held 
not  actionable.  (Colabyn  v.  Viner,  Jones,  356.)  So  saying  of  a  woman,  She  had 
a  child,  and  either  she  or  somebody  else  made  away  with  it,  was  held  not  action- 
able.    (Falkner  v.  Cooper,  Carth.  55.) 

620  Cavelv.  Birket,  Sid.  438  ;  contra,  Hicks  v.  HolUngshead,  Cro.  Cai\  261. 

621  Buys  v.  Gillespie,  2  Johns.  115;  such  a  charge  is  actionable  in  Kentucky 
(SmaJley  v.  Anderson,  2  Monr.  56),  in  Ohio  ( Wilson  v.  Robins,  Wright,  40),  in 
North  Carolina  {McBrayer  v.  Hill,  4  Ired.  136 1,  in  Indiana  (Rickett  v.  Stanley,  6 
Blackf.  169),  and  in  New  Jersey  (Joralemon  v.  Pomeroy,  2  N.  Jersey,  271). 
Charging  an  unmarried  woman  with  being  "  a  bad  character,"  and  guilty  of  for- 
nication, held  actionable  in  Iowa.  (Dailey  v.  Reynolds,  4  Greene,  354.)  And  see 
ante,  §  144,  subd.  /.,  and  post,  note  571. 

622  Woodbury  v.  Thompson,  3  N.  Hamp.  194;  Slanficld  v.  Boyer,  6  Har.  &  J. 
248  ;  contra,  Miller  y.  Parish,  8  Pick.  384  ;  and  see  Walton  v.  Singleton,  7  S.  & 
R.  449.  To  charge  a  woman  with  fornication  or  adultery,  or  incontinence  in  any 
form,  is  not  actionable  at  common  law.  (Heard  on  Libel,  p.  46,  citing  in  addition 
to  the  cases  already  noted,  Ayre  v.  Craven,  2  Adol.  <fe  El.  2 ;  4  Nev.  &  M.  220  ; 
Evans  v.  Gwyn,  5  Q.  B.  844.) 

623  Lucas  v.  Nichols,  7  Jones'  Law,  N.  C.  32. 

624  Brooker  v.  Coffin,  5  Johns.  188. 

625  A dccoek  v.  Marsh,  8  Ired.  360. 

620  Underbill  v.   Wellon,  32  Verm.  40. 
627  Guard  v.  Risk,  11  Ind.  156. 

62e  Smith  v.  Minor,  Coxe,  16;  Miles  v.  Van  Horn,  17  Ind.  245;  contra,  see 
Shepherd  v.  Wakeman,  Sid.  79 ;  Lev.  37. 

62J  Miles  v.   Van  Horn,  17  Ind.  245.     "  It's  my  soul's  opinion  that  nothing  else 
12 


178  WHAT   LANGUAGE   IS  ACTIONABLE. 

ones  to  A.  j530  or,  her  child  is  A.'s  and  A.  was  keeping  her  un- 
married for  his  own  purposes  5  s31  or  charging  sexual  intercourse 
with  a  dog;532  and  where  the  defendant  said  of  the  plaintiff 
that  B.  told  him  that  on  Sunday,  at  the  camp-meeting,  he 
scared  the  plaintiff  and  a  man  up  from  behind  a  log ;  that  they 
broke  and  run,  and  that  he  (B.)  got  her  (plaintiff's)  parasol  and 
handkerchief,  held  that  these  words  were  actionable;533  but 
saying  of  a  woman,  she  went  down  the  river  to  the  goose  house, 
without  averring  any  special  meaning  to  goose  house,  was  held 
not  actionable.534 

§  173.  The  following  words  and  phrases  published  orally  of 
an  individual  as  such,  have  been  held  actionable^?1  se  :  Bogus 
peddler,535  dealer  in  counterfeit  money,536  knave,537  pickpocket,538 
sheepstealer,539  traitor,540  common  barretor  or  champertor,541  re- 


kept  that  girl  in  the  house  last  winter  hut  taking  medicine  to  banish  the  young 
baker,"  innuendo  that  plaintiff  had  taken  medicine  to  procure  an  abortion,  held 
actionable.  (Miller  v.  Houghton,  10  Up.  Can.  Q.  B.  R.  348.)  And  held  action- 
able to  say  of  a  woman,  "  She  procured  or  took  medicines  to  kill  the  bastard 
child  she  was  like  to  have,  and  she  did  kill  or  poison  the  bastard  child  she  was 
like  to  have."     (  Widrig  v.  Oyer,  13  Johns.  124.) 

530  Symonds  v.  Carter,  32  N.  Hamp.  458,  and  ante,  note  519. 

631  Bichardsony.  Roberta,  23  Geo.  215.  She  (plaintiff)  is  not  chaste.  I  have 
kept  her,  and  had  criminal  intercourse  with  her;  or,  "  I  have  had  sexual  inter- 
course with  her,"  held  not  actionable.  (Berry  v.  Carter,  4  Stew.  &  Port.  387.) 
The  words,  I  have  lain  with  her  and  pockified  her,  held  actionable.  (JS'ealv.  Mal- 
lard, 2  Show.  312.) 

632  Cleveland  v.  Detweiler,  18  Iowa,  299,  and  see  ante,  note  143. 

633  Proctor  v.  Owens,  18  Ind.  21. 
534  Dyery.  Morris,  4  Mis.  214. 

635  Pike  v.  Van  Wormer,  6  How.  Pr.  R.  101 ;  5  id.  175. 
536  Pike  v.  Van  Wormer,  6  How.  Pr.  R.  99. 

637  Knave  imports  dishonesty,  and  is  actionable.  Harding  v.  Brooks,  5  Pick. 
244;  contra,  see  Weeks'  case,  1  Sid.  149,  Latch,  159,  and  Monthly  Law  Rep., 
Oct.,  1862,  p.  716. 

638  Stebbivg  v.  Warner,  11  Mod.  255,  and  see  note  258,  ante. 

639  Parret  v.  Parret,  3  Bulst.  303 ;  Vin.  Abr.  Act.  for  Words,  I.  a.  5. 
540  Dal.  17.     Bellingham  v.  Minors,  Cro.  Eliz.  133. 

641  Vin.  Abr.  Act.  for  Words,  H.  a.  7 ;  Heake  v.  Moulton,  Yelv.  90;  Box  v. 
Barnaby,  Hob.  117,  but  maintainer  of  suits  is  not  actionable.  (Id.)  See  contra, 
Portman  v.  Stowell,  Mo.  43. 


WHAT  LANGUAGE   IS  ACTIONABLE.  179 

ceiver  of  stolen  goods,542  counterfeiter.543  I  charge  you  with 
felony ; 544  you  are  a  rogue,  and  1  will  prove  you  a  rogue,  for 
you  forged  my  name;545  concealing  stolen  goods,546  purchasing 
stolen  goods,  knowing  them  to  have  been  stolen.547  Hog  thief.548 
He  is  a  rogue,  and  has  stolen  my  sheep.549  You  have  altered  the 
marks  of  four  of  my  hogs ;  55°  he  killed  a  horse.551  You  have 
removed  my  land-marks ;  cursed  is  he  that  removetli  a  land- 
mark.552 She  put  poison  in  a  barrel  of  drinking-water  to  poison 
me.553  You  are  a  vagrant,554  a  corn-stealer,555  concealer  of  fel- 
ony.556 He  is  a  rogue  and  villain  ;  he  has  ruined  many  fami- 
lies, and  the  curses  of  widows  and  children  are  on  him ;  he  has 

542  Dias  v.  Short,  16  How.  Pr.  R.  322.  To  charge  one  with  having  re- 
ceived stolen  goods  is  not  actionable,  unless  the  receiving  was  with  a  guilty 
knowledge  (id.);  and  Patterson  v.  Collins,  11  Up.  Can.  Q.  B.  R.  63.  See  Dorsey 
v.  Whipps,  8  Gill,  457;  Cox  v.  Humphreys,  Cro.  Eliz.  877 ;  Steventon  v.  Higgins, 
2  Keb.  338  ;  Dawes  v.  Bolton,  Cro.  Eliz.  888. 

643  Howard  v.  Stephenson,  2  Rep.  Conn.  C't,  408 ;  Tliirman  v.  Matthews,  1  Stew. 
384.  The  law  takes  notice  of  the  word  counterfeit,  as  importing  a  felony.  (St07ie 
v.  Smalcombe,  Cro.  Jac.  684.) 

644  Vin.  Abr.  Act.  for  Words,  G.  a.  3  ;  Jones,  32 ;  Smith  v.  Hodgeskins,  Cro. 
Car.  276;  Poph.  210;  Paine  v.  Prestny,  Sty.  235. 

645  Jones  v.  Hearne,  2  Wils.  87. 

546  Miller  v.  Miller,  8  Johns.  74 ;  and  see  Newlyn  v.  Fassett,  Yelv.  154. 

647  Alfred  v.  Farlow,  8  Adol.  &  El.  N.  S.  854  ;  Mayo  v.  Sample,  18  Iowa,  306  ; 
Brigg's  Case,  Godb.  157;  and  see  Dorsey  v.  Whipps,  8  Gill,  457. 

648  Cheatwoodv.  Mayo,  5  Munf.  16. 

649  Mc Alexander  v.  Harris,  6  Munf.  465. 

560  Perdue  v.  Burnett,  Minor,  138;  contra,  Williams  v.  Karnes,  4  Humph.  9; 
Johnston  v.  Morrow,  9  Porter,  525. 

651  Gage  v.  Shellon,  3  Rich.  242.  He  cut  my  horse's  throat  is  actionable. 
(Yearly  v.  Ashley,  4  liar.  &  J.  314.)  He  poisoned  my  cow,  held  actionable.  (Bur- 
ton v.  Burton,  3  Iowa,  316,)  contra  of  He  poisoned  my  horse.  (Chaplin  v.  Cruik- 
shanks,  2  liar.  &  J.  247.) 

662  You,,g  v.  Miller,  3  Hill,  21. 

663  Mills  v.  Wimp,  10  B.  Monr.  417. 
654  Miles  v.  Oldfield,  4  Yeates,  423. 

663  Vin.  Abr.  Act.  for  Words,  G.  a.  24 ;  Anon.  Cro.  Eliz.  563. 

666  Thou  art  a  concealer  of  felony,  and  it  Iieth  in  my  power  to  hang  thee.  Vin. 
Abr.  Act.  for  Words  G.  a.  21 ;  Yelv.  154.  M.  hath  stolen  sheep,  and  Nichols  by 
agreement  hath  taken  a  meadow  to  help  him  to  cloak  and  escape  the  felony,  held 
actionable,  although  not  alleged  that  Nichols  knew  of  the  felony  for  taking  the 
meadow  to  cloak  the  felony  implied  he  had  notice  of  it.  (Nichols  v.  Budget,  Mo, 
428.)     And  see,  Rich  v  Holt,  Cro.  Jac.  268. 


180  WHAT   LANGUAGE   IS   ACTIONABLE. 

wronged  my  father's  estate,  and  cheated  my  brother.557  She 
produced  a  false  heir,  or  a  bogus  baby;558  she  kept  a  bawdy 
house,559  or  she  keeps  a  whore-house;560  indecent  exposure ; 561 
bribery  to  secure  election  ; 562  breaking  open  a  letter  addressed 
to  another,  and  taking  out  money  and  using  the  money  so' 
taken.563  You  have  committed  an  act  for  which  I  can  transport 
you.564  I  know  enough  he  has  clone  to  send  him  to  the  peni- 
tentiary.565 I  am  thoroughly  convinced  that  you  are  guilty 
(innuendo  of  the  death  of  D.),  and  rather  than  you  should  go 
without  a  hangman  I  will  hang  you.566  Fraudulently  destroy- 
ing a  vote  ;567  signing  name  to  a  note  without  authority  ;568  he 
has  been  excommunicated,569  whoremonger,570  fornication,  when 
or  where  punishable  by  indictment.571    He  hath  got  M.  N".  with 

657  Marshall  v.  Addison,  4  Har.  &  McIIen.  537. 

658  Weedy.  Bibbins,  32  Barb.  315. 

669  The  offence,  although  past,  is  still  punishable.  (IVewion  v.  Masters,  2  Lev. 
233  ;  Martin  v.  SHllwell,  13  Johns.  275;  Vin.  Abr.  Act.  for  Words,  H.  a.  S.)  See 
ante,  note  144,  suhd.  d.  A  charge  of  keeping  a  bawdy  house  was  held  not  action- 
able.    Anon.  Cro.  Eliz.  643. 

560  Wright  v.  Paige,  36  Barb.  438.     See  ante,  note  144,  subd.  d. 

561  Torbett  v.  Clare,  8  Ir.  Law  Rep.  86. 

662  Bendish  v.  Lindsay,  11  Mod.  194  ;  Hoag  v.  Hatch,  23  Conn.  585,  or  to  pro- 
cure an  appointment  under  the  government.  (Pzirdyy.  Stacy,  5  Burr.  2698.  See 
Lindsey  v.  Smith,  7  Johns.  359  ;    Chipman  v.  Cook,  2  Tyler,  456.) 

603  Cheadle  v.  Buel,  6  Ham.  67;  see  McCuen  v.  Ladlam,  2  Harr.  12;  Bell  v. 
Thatcher,  Freeman,  276;  HUlhouse  v.  Peck,  2  Stew.  &  Port.  395. 

664  Curtis  v.  Curtis,  4  Mo.  <fe  Sc.  337 ;  10  Bing.  477. 

566  Johnson  v.  Shields,  1  Dutcher,  116. 

666  Peake  v.  Oldham,  Cowp.  275  ;  2  W.  Black,  960. 

!66T  Dodds  v.  Henry,  9  Mass.  262. 

668  Creclmanv.  Marks,  7  Blackf.  281. 

569  The  defendant,  a  minister,  pronounced  in  church  that  the  plaintiff  had  been 
excommunicated,  and  refused  to  proceed  with  the  service  until  plaintiff  left  the 
church,  held  actionable.  {Barnabas  v.  Traunter,  Yin.  Abr.  Act.  for  Words,  D. 
a.  15.) 

610  Vin.  Abr.  Act.  for  Words,  D.  a.  26 ;  see  note  598,  post. 
671  2  Sid.  21 ;  Joralemon  v.  Pomeroy,  2  N.  Jersey,  271.  In  Kentucky  a  man 
may  maintain  an  action  of  slander  for  words  charging  him  with  having  been 
guilty  of  fornication  (Morris  v.  Barkley,  1  Litt.  64  ;  see,  also,  Phillips  v.  Wiley, 
2  ib.  153);  and  so  in  Pennsylvania,  though  he  be  a  married  man  (  Walton  v.  Sin- 
gleton,  7  S.  &  R.  449),  but  not  so  in  Ohio.  ( Wilson  v.  Bobbins,  Wright,  40 ;  and 
see  Dukes  v.  Clarke,  2  Blackf.  20.)     And  for  such  a  charge  a  woman  may  main- 


WHAT   LANGUAGE   IS   ACTIONABLE.  181 

child.572  He  should  [would]  have  been  hanged  for  a  rape,  but 
it  cost  him  all  the  money  in  his  purse.573  You  will  lie  with  a 
cow  again  as  you  did.  If  you  had  your  deserts  you  deserve  to 
be  hanged.574  You  (plaintiff)  are  as  great  a  rogue  as  your 
master,  who  is  a  rogue  for  that  he  stole  rugs.575  Adultery  in 
certain  States  in  which  it  is  punishable  as  a  crime.576  Inconti- 
nence.577 

§  174.  The  following  words  and  phrases  published  orally 
of  an  individual  as  such,  have  been  held  not  actionable  per 
se : — Adulterer,578  bawd,579  bankrupt,580  blackleg,581  cheat,582  com- 
mon filcher,583  companion  of  cut  throats,584  enchanter,585  liar,586 

tain  an  action  in  Missouri,  Indiana  and  New  Hampshire.  (3foberly  v.  Preston,  8 
Mis.  462;  Abshire  v.  Ciine,  3  Ind.  115;  Symonds  v.  Carter,  32  N.  H.  458;)  and 
see  Dote  521,  ante. 

572  Marston  v.  Dennis,  2  Sid.  1657.  Sir  John  Lenthall  lay  with  me,  and  had 
the  use  of  my  body  by  force,  held  actionable;  the  majority  of  the  court  being  of 
opinion  that  the  words  by  force  imputed  a  rape  (Lenthall's  Case,  Litt.  Rep.  337, 
and  see  Taylor  v.  Tally,  Palmer,  385,  where  a  charge  that  T.  ravished  H.'s  wife,  was 
held  actionable.)  The  words,  He  had  the  use  of  my  wife's  body  by  force,  with 
allegation  of  special  damage  that  in  cQnsequence  of  the  words  plaintiff  was  ar- 
rested on  a  charge  of  rape,  and  put  to  expense  in  making  his  defence,  held  action- 
able.    (Harris  v.  Smith,  Vin.  Abr.  Act.  for  Words,  D.  a.  9.) 

573  Redfern  v.  Todd,  Cro.  Eliz.  589. 

574  Poturite  v.  Barrel,  Sid.  220. 

575  Apton  v.  Penfold,  Comyn's  R.  267. 

676  Steber  v.  Wensel,  19  Mis.  513;  Farnsworth  v.  Slorrs,  5  Cush.  412  ;  Richett 
v.  Stanley,  6  Blackf.  169.     See  ante.,  note  172,  and  post,  note  578. 

577  Watts  v.  Gremlee,  2  Dev.  115.     See  ante,  note  §  153,  and  post,  note  884. 

578  Vin.  Abr.  Act.  for  Words,  G.  a.  12 ;  D.  a   27. 
67B  Vin.  Abr.  Act.  for  Words,  II.  a.  9. 

580  Vin.  Abr.  Act.  for  Words,  H.  a.  6. 

581  Barnett  v.  Allen,  3  Hurl.  &  Nor.  376. 

682  Chase  v.  Whitlock,  3  Hill,  139;  Stevenson  v.  Haydcn,  2  Mass.  406;  Vin. 
Abr.  Act.  for  Words,  G.  a.     See  note  621,  post. 

683  Vin.  Abr.  Act.  for  Words,  G.  a. 

64  Vin.  Abr.  Act.  for  Words,  G.  a. 

686  Vin.  Abr.  Act.  for  Words,  H.  a. 

688  Hundley  v.  Anderson,  4  Monr.  367;  King's  Case,  4  Inst.  181  ;  and  see  note 
215,  ante. 


1S2  WHAT   LANGUAGE   IS  ACTIONABLE. 

rogue,587  arrant  rogue,588  damned  rogue,589  you  are  a  rogue  and 
cheated  J.  S.  out  of  £100,590  sacrilege,591  scoundrel,592  sorcerer,593 
swindler,594  varlet,593  villain,596  witch,597  whorem  aster,598  bas- 
tard.599 He  is  father  of  a  bastard.600  He  cozened  J.  S.  of  one 
hundred  marks.601  He  cozened  the  Earl  of  H.  of  as  much  as 
he  (plaintiff)  is  worth.602  You  cozened  me  of  £1,200  at  one 
time.603  Your  master  (plaintiff)  is  a  cozening,  cheating  knave, 
and  a  rogue  to  boot,  and  cozened  and  cheated  all  the  parish 
and  all  persons  he  deals  with.604  Those  two  rascals  (plaintiff 
and  his  brother)  killed  my  hogs  and  converted  them  to  their 
own  use.603     The  library  has  been  plundered  by  C.  (the  plain- 

687  Artieta  v.  Artieta,  15  La.  Ann.  48;  Idol  v.  Jones,  2  Dev.  162;  Quinnv. 
O'Gara,  2  E.  D.  Smith,  388.  "  Your  father  was  a  horse-stealing  rogue,  and  you 
(plaintiff)  are  a  g;reat  rogue,"  not  actionable  (Bellamy  v.  Barker,  1  Strange,  3u4). 
Rogue,  rascal,  scoundrel,  and  the  like,  are  not  actionable.  1  Starkie  on 
Slander,  24. 

588  Vin.  Abr.  Act.  for  Words,  G.  a. 

689  Oakley  v.  Farrington,  1  Johns.  Cas.  129;  Caldwell  v.  Abby,  Hard.  529. 
God-damned  rogue,  not  actionable.     Ford  v.  Johnson,  21  Geo.  399. 

600  Winter  v.  Sumvalt,  3  Har.  &  J.  38.  Saying  one  was  a  rogue  of  record,  was 
held  actionable.     Sty.  220. 

691  Gawdy  v.  Smith,  Sid.  3Y6. 

592  Quinn  v.  (7  Gara,  2  E.  D.  Smith,  388. 

693  Vin.  Abr.  Act.  for  Words,  II.  a. 

694  Chase  v.  Whitlock,  3  Hill,  139;  Saville  v.  Jar  dine,  2  II.  Black,  531 ;  Odiorne 
v.  Bacon,  6  Cush.  185;  Stevenson  v.  Hayden,  2  ilass.  406.     See  post,  notes  666,  667. 

685  Vin.  Abr.  Act.  for  Words,  G.  a. 
696  Vin.  Abr.  Act.  for  Words,  G.  a. 

597  Vin.  Abr.  Act.  for  Words,  H.  a.  "  Heretic  "  or  "  Papist,"  not  actionable. 
Id.  D.  a. 

698  Witcher's  Case,  Keb.  119  ;  Vin.  Abr.  Act.  for  Words,  D.  a.  But  actionable 
with  special  damage.     Crass  v.  Matthew,  Cro.  Jac.  323 ;  2  Bulst.  86. 

699  Not  actionable  unless  special  damage.  Vin.  Abr.  Act.  for  Words,  D.  a. 
16,  17,  18,  21,  22,  31  ;  Nelson  v.  Staff,  Cro.  Jac.  432. 

60(1  Unless  the  bastard  is  chargeable  to  the  parish.  Salter  v.  Brown,  Cro.  Car. 
436;  Randle  v.  Beat,  Cro.  Jac.  473. 

601  Somerstaile's  Case,  Goldsb.  125. 

602  Tut  v.  Kerton,  1  Bulst   172. 

609  Townsend  v.  Barker,  Sty.  388.     Thou  hast  no  more  than  thou  has  got  by 
cozening,  not  actionable.     Broom  field  v.  Snoke,  12  Mod.  307. 
804  Tamliny.  Hamlin,  Show.  181. 
606  Sturgenegger  v.  Taylor,  2  Brevard,  480. 


WHAT   LANGUAGE   IS   ACTIONABLE.  183 

tiff).606  He  killed  and  salted  one  of  my  hogs.607  He  de- 
frauded a  meal  man  of  a  horse.608  He  robbed  the  treasury 
and  bought  a  farm  with  it.609  He  embezzled  goods.610  He 
attempted  to  commit  a  robbery.611  He  passed  counterfeit 
money.612  He  cut  off  the  tail  of  my  horse.613  He  harbored 
my  negroes.614  He  whipped  his  wife,615  or  his  mother.616  He  is 
a  mulatto  and  akin  to  negroes.617  He  gave  a  free  pass  to  a 
negro.618  He  (plaintiff)  is  a  brabbler  and  a  quarreller,  for  he 
gave  his  champion  counsel  to  make  a  deed  of  gift  of  his  goods, 
to  kill  me  and  then  to  fly  out  of  the  country,  but  God  pre- 
served me.619  His  (plaintiff's)  boys  did  frequently  come  to  our 
house  and  hire  our  negroes  and  take  the  dogs  and  go  down 
into  the  river  bottom  and  killed  cattle  no  more  theirs  than 
mine.620  You  cheated  the  lawyer  of  his  linen  and  stood  bawd 
to  your  daughter  to  make  it  up  with  him ;  you  cheat  everybody, 
you  cheated  me  of  a  sheet,  you  cheated  T.  S.,  and  I  will  let 
him  know  it.621  She  secreted  one  shilling  under  the  till  stating 
these  are  not  times  to  be  robbed.622  She  is  an  hermaphrodite.623 
He  is  a  bloodsucker,  and  not  worthy  to  live  in  a  common- 


606  Carter  v.  Andrews,  16  Pick.  1. 

607  Clay  v.  BarMey,  Ky.  Dec.  79. 

608  Richardson  v.  Allen,  2  Chit.  654. 

609  Allen  v.  Hillman,  12  Pick.  101. 

6,0  Caldwell  v.  Abbey,  Hard.  529 ;  and  see  Williams  v.  Stott,  1  Cr.  &  M.  675 ;  3 
Tyrw.  688. 

611  Russell  v.  Wilson,  7  B.  Monr.  261. 
*12  Church  v.  Bridgman,  6  Miss.  190. 

613  Gage  v  Shelton,  3  Rich.  242. 

614  Croskeys  v  O'Driscoll,  1  Bay,  481 ;  Skinner  v.  White,  1  Dev.  &  Bat.  471. 

615  Birch  v.  Benton,  26  Miss.  153;  Dudley  v.  Horn,  21  Ala.  379. 

616  Speaker  v.  McKenzie,  26  Miss.  255. 

617  Barrett  v.  Jarvis,  1  Ham.  83,  note.  But  such  a  charge  was  held  actionable. 
Eden  v  Legate,  1  Bay,  171 ;  Atkinson  v.  Hartley,  1  McCord,  203;  King  v.  Wood, 
1  N.  &  M.  184. 

618  McManus  v.  Jackson,  28  Miss.  56. 

619  Eaton  v.  Allen,  4  Co.  16. 

620  Porter  v  Hughey,  2  Bibb,  232. 

821  Davis  v.  Miller,  2  Strange,  1169 ;  and  see  note  582,  ante. 

699  Kelly  v.  Partington,  2  Nev.  &  M.  460. 

e"3  The  words  were  spoken  of  one  who  taught  dancing,  and  held  not  actionable 


1SJ:  WHAT   LANGUAGE   IS   ACTIONABLE. 

wealth,  and  his  child,  unborn,  is  bound  to  curse  him.624  Thy 
credit  hath  been  called  in  question  and  a  jury  being  to  pass  upon 
it,  thou  foistedst  on  a  jury  early  in  the  morning,  and  the  lands 
thou  hast  are  gotten  by  lewd  practices.625  Thou  wast  the  cause 
that  J.  S.  did  hang  himself,  and  that  R.  N.  did  cut  his  own 
throat,  and  thou  beginnest  with  no  man  but  thou  undoest 
him ; m  drunkenness ; 627  he  got  drunk  on  Christmas  day.628 

§  175.  "With  respect  to  a  charge  of  having  a  disease,  it  is 
actionable  to  charge  one  with  having  the  venereal  disease,629  or 
gonorrhoea,630  or  leprosy,631  or  semble,  falling  sickness,632  but  not 
the  itch  or  small  pox.633  To  call  one  leprous  knave  was  held 
actionable.634  But  it  has  been  held  not  actionable  to  charge 
one  with  having  had  any  of  the  diseases  above  indicated  j633 
thus  it  was  held  not  actionable  to  say  of  one,  Thou  art  a  base 
fellow  and  hadst  [or,  hast  had]  the  French  pox,633  or  to  say  of  a 

because  men  as  well  as  women  taught  dancing  (  Weatherheadv.  Armitage,  2  Le- 
vinz,  233).  But  in  Ohio  it  has  been  held  actionable  to  call  a  woman  an  herma- 
phrodite.    (Malone  v.  Stewart,  15  Ohio,  319.) 

624  Thimmelthorp's  Case,  Noy,  64. 

625  Nichols  v.  Badger,  Cro.  Eliz.  348  ;  see  ante,  §  144,  subd.j. 

626  Anon.  Dal.  89. 

627  Buck  v.  Hersey,  31  Maine,  558  ;  CfHanlon  v.  Myers,  10  Eich.  Law  (So.  Car.) 
128.  But  held  actionable  when  charged  against  a  preacher  or  settled  minister 
{McMillan  v.  Birch,  1  Binn.  178  ;  Chaddock  v.  Briggs,  13  Mass.  248),  or  a  female. 
(Brown  v.  Nickerson,  5  Gray,  1.) 

628  Warren  v.  Norman,  Walker,  3S7. 

629  Bloodworth  v.  Gray,  7  M.  &  G.  334;  8  Sc.  N.  S.  9  ;  Goldman  v.  Steams,  7 
Gray,  181 ;  Williams  v.  Holdridge,  22  Barb.  398;  Hewit  v.  Mason,  24  How.  Pr.  R. 
366;  Yin.  Abr.  Act.  for  Words,  D.  a.  56  ;  H.  a.  3,  4,  5,  9 ;  U.  a.  15 ;  Nichols  v. 
Guy,  2  Carter,  82. 

630  Watson  v.  McCarthy,  2  Kelly,  57 ;    Williams  v  Holdridge,  22  Barb.  398. 

631  Id. 

632  Spoken  of  a  lawyer.     Taylor  v.  Perkins,  Noy,  117. 

633  See  Villers  v.  Monsley,  2  Wils.  403,  and  notes  141  ante,  and  676  post. 

634  Taylor  v.  Perkins,  Cro.  Jac.  144. 

635  Cm-slake  v.  Mapeldora,  2  T.  R.  474 ;  Bloodworth  v.  Gray,  7  M.  &  G.  334 ; 
8  Sc.  N.  S.  9 ;  Pike  v.  Van  Warmer,  5  How.  Prac.  R.  171. 

636  Smith's  Case,  Noy,  157;  Dutton  v.  Eaton,  AIL  31.  But  id  Miller's  Case. 
Cro.  Jac.  430,  the  words  Mrs.  Miller  is  a  whore  and  hath  had  the  pox,  were  held 
actionable. 


WHAT   LANGUAGE   IS  ACTIONABLE.  1S5 

■woman,  "  I  have  kept  her  common  these  seven  years,  she  hath 
given  me  the  bad  disorder  and  three  or  four  other  gentle- 
men.1'637 The  reason  assigned  for  these  decisions  is,  that  to 
charge  the  having  such  a  disease  is  actionable  because  the  dis- 
ease, being  contagious,  the  having  it  renders  the  person  an  im- 
proper member  of  society,  but  there  is  no  reason  why  the  com- 
pany of  a  person  who  has  had  a  contagious  disease  should  be 
avoided  ;  and  therefore,  to  say  one  has  had  such  a  disease  is 
not  actionable.  A  distinction  is  taken  between  having  had  a 
disease  and  having  been  guilty  of  a  crime,  the  stain  of  which 
remains.638  These  decisions  assume  that  it  is  the  fact  of  the 
disease  being  contagious  which  renders  the  charge  of  having  it, 
actionable.  We  are  not  satisfied  that  this  assumption  is  war- 
ranted. The  charge  of  leprosy  certainly  involved  more  than  a 
mere  charge  of  having  a  contagious  disease.  The  leper  lost  his 
civil  rights  and  all  ecclesiastical  privileges,  he  was  at  once  cast 
off  by  society  and  excommunicated  by  the  church.  The  physi- 
cian held  out  to  him  no  hope  of  being  cured,  and  the  priest  no 
hope  of  being  saved ;  and  besides,  leprosy  impeded  the 
descent.639  And  there  was  a  writ  de  lejyroso  amovendo  com- 
manding the  sheriff  to  remove  him  to  a  solitary  place.  Even 
at  this  day,  in  those  countries  in  which  leprosy  prevails,  the 
slightest  ascertained  taint  of  the  disease  entails  upon  the 
sufferer  a  compulsory  exclusion  tantamount  to  banishment 
from  the  rest  of  the  community,  or  even  to  perpetual  detention 
in  a  lazaret ;  and  strange  to  say,  it  seems,  that  leprosy  is  not 
a   contagious    disease,640    although    beyond  doubt  it   was    so 

637  Carslakev.  Mapeldora,  2  T.  R.  473. 

03B  There  is  this  difference  of  scandal  in  the  past  tense,  when  it  touches  the 
mind  and  when  it  touches  the  body.  If  it  be  a  scandal  to  the  mind  and  the  affec- 
tions as  perjury,  felony,  &c,  then  the  mind  that  remains  is  slandered  ;  but  if  it 
be  of  an  accidental  infirmity  or  disease  of  the  body  it  is  otherwise,  for  none  now 
will  forbear  his  company  though  he  had  the  plague  in  times  past.  Coke,  Ch.  J. ; 
see  Smith's  Case,  Noy,  157;  Dutton  v.  Eaton,  All.  31.  As  to  charges  in  the  past 
tense,  see  §  158,  ante. 

039  Hale's  Hist.  Com.  Law,  ch.  VI. 

640  Report  on  Leprosy  by  the  Royal  College  of  Physicians,  prepared  for  ner 
Majesty's  Secretary  of  State  to  the  Colonies.     London,  1867. 


1S6  WHAT  LANGUAGE   IS   ACTIONABLE. 

esteemed  at  the  period  when  the  dicta  we  have  above  referred  to 
were  pronounced.  The  charge,  too,  of  having  the  lues  venerea, 
was  something  more  than  a  charge  of  having  a  contagious  dis- 
ease, at  least  it  involved  a  charge  of  lewdness.  That  the  bare 
fact  of  the  disease  being  contagious  was  not  the  ground  for 
making  the  charge  actionable,  seems  to  be  apparent  from  this : 
Lues  venerea,  vulgarly  called  pox,  was  formerly  called  the 
French  pox,  or  the  great  pox,  to  distinguish  it  from  variola  or 
small  pox.  Now  the  small  pox  is  a  contagious  disease,  but  it 
has  never  been  held  actionable  to  charge  one  with  having  the 
"small  pox,"  and  we  find  in  the  reports- that  when  the  charge 
was  simply  of  having  the  pox — without  any  other  words  or 
facts — to  indicate  that  the  French  pox  was  intended,  the  charge 
was  held  not  actionable.641  To  such  an  extent  was*  this  distinc- 
tion carried  that  where  the  charge  was  simply  of  having  the 
pox,  it  was  held  the  meaning  of  French  pox  could  not  be  given 
to  the  word  by  an  innuendo,  without  an  averment  which  war- 
ranted it.642  Notwithstanding  the  dicta  above  referred  to, 
probably  a  better  reason  for  holding  a  charge  of  having  the 
leprosy  or  lues  venerea  is  that  those  diseases  were  supposed  to  be 
ineradicable  from  the  system,  and  their  taint  hereditary.  If  this 
reason  is  the  true  one,  then  the  charge  of  having  had  should 
be  actionable  equally  with  a  charge  of  having  such  a  disease. 

641  It  was  held  not  actionable  to  say  of  a  man,  Hang  him,  he  is  full  of  the  pox 
(Bonner's   Case,  4  Coke,   17),  or  of  a  woman,  You  are  a  pocky  whore,  go  to  the 

leech   [doctor]  for  the  pox  ( v.  Farm,  Vin.  Abr.  Act.  for  Words,  Y.  a.  23)} 

or,  Thou  art  a  scurvy  pocky  whore  (Hunt  v.  Jones,  Cro.  Jac.  499),  because  it  was 
not  apparent  that  French  pox  was  intended,  but  it  was  said  in  another  case  that 
when  the  word  pox  was  coupled  with  the  word  whore,  the  French  pox  would  be 
intended  (Sid.  50;  Clifton  v.  Wells,  12  Mod.  633;  Garford  r.  Clark,  Cro.  Eliz. 
857;  and  see  note  517,  ante).  So  saying  of  one,  He  caught  the  pox,  was  held  not 
actionable,  as  not  implying  the  French  pox,  but  saying  he  got  the  pox  by  a 
yellow-haired  wench  (Sym  v.  Hockley,  Sid.  324),  or  He  is  rotten  with  the  pox 
(Dairies  v.  Taylor,  Cro.  Eliz.  648),  or  Thy  pocky  wife,  her  nose  is  eaten  with  the 
pox  (Brooke  v.  Wise,  Cro.  Eliz.  878),  or  The  pox  haunts  you  twice  a  year  (Preck- 
inff ton's  Case,  Vin.  Abr.  Act.  for  Words,  Y.  a.  17),  or  You  were  laid  for  the  pox 
(Austin  v.  White,  Cro.  Eliz.  214),  or  Thou  art  burnt  and  hast  the  pox  (Box's  Case, 
Cro.  Eliz.  21,  was  held  actionable  because  French  pox  is  implied.  Webster,  in 
his  Dictionary,  says  that  the  word  pox,  without  an  epithet,  imports  lues  venerea  ; 
strumpet  equivalent  to  whore.    Cooky.  Wingfield,  1  Stra.  555  contra,  note  517,  ante, 

642  Bonner's  Case,  Mo.  573  ;   4  Coke,  17. 


WHAT   LANGUAGE  IS   ACTIONABLE.  187 

§  176.  What  language  published  in  writing  concerning  an 
individual  as  such,  is  actionable  per  se  f  That  language  in 
writing  is  actionable  per  se  which  denies  "  to  a  man  the  pos- 
session of  some  such  worthy  quality  as  every  man  is  a  priori 
to  be  taken  to  possess,"643  or,  which  "tends  to  bring  a  party 
into  public  hatred  or  disgrace,"644  or  "to  degrade  him  "645  "  in 
society,"648  or,  expose  him  to  "hatred,  contempt  or  ridicule,"647 
or  "  which  reflects  upon  his  character,"648  or  "  imports  something 
disgraceful  to  him,"649  or  "throws  contumely"  on  him,650  or 
"  contumely  and  odium,"651  or  "  tends  to  vilify  him,"652  or  "  in- 
jure his  character  or  diminish  his- reputation," 653  or  which  is 
"injurious  to  his  character,"654  or  to  his  "social  character,"655 
or  shows  him  to  be  "  immoral  or  ridiculous," 656  or  "  induces  an 
ill  opinion  of  him,"657  or  "  detracts  from  his  character  as  a  man 
of  good  morals,"658  or  alters  his  "situation  in  society  for  the 
worse,"659  or  "imputes  to  him  a  bad  reputation"660  or  "  degra- 

643  George  on  Libel,  17. 

644  Tenterden,  Ch.  J.,  Woodivard  v.  Dowsing,  2  M.  &  R.  74. 
045  Holroyd,  J.,  id. 

646  Bay  ley,  B.,  Forbes  v.  King,  1  Dowl.  627. 

647  Parmeter  v.  Cmipland,  6  M.  &  W.  105;  Gathercole  v.  Mial,  15  M.  &  W. 
319  ;  Miller  v.  Butler,  6  Cush.  71  ;  Shattuck  v.  Allen,  4  Gray,  540;  Com'wealth  v. 
Wright,  1  Cush.  46  ;  Hillhouse  v.  Dunning,  6  Conn.  391 ;  McGregor  v.  Thwaites, 
3  B.  <fc  C.  24 ;  Clement  v.  Chins,  9  B.  &  C.  172  ;  4  Man.  &  R.  127  ;  Clark  v.  Bin- 
ney,  2  Pick.  113  ;  Cooper  v.  Stone,  24  Wend.  434 ;  Colby  v.  Reynolds,  6  Verm.  489  ; 
Johnson  v.  Slebbins,  5  Ind.  364  ;  Lansing  v.  Carpenter,  9  Wis.  540. 

C4B  O'Brien  v.  Clement,  15  M.  &  W.  435  ;  Johnson  v.  Stebbins,  5  Ind.  364. 

649  Digbyv.  Thompson,  4  B.  &,  Adol.  821 ;  1  Nev.  <fe  M.  485. 

650  Bell  v.  Stone,  1  Bos.  &  P.  331 ;    Obaugh  v.  Finn,  4  Pike,  110. 
661  Riffgs  v.  Denniston,  3  Johns.  Cas.  198. 

Ia  Shipley  v.  Todhunter,  7  C.  &  P.  680. 

6"  2  Leighs  N.  P.  1360;  Dunn  v.  Withers,  2  Humph.  512;  Melton  v.  The 
Slate,  3  id.  380. 

eM  Cockayne  v.  Hodgkisson,  5  C.  &  P.  543. 
666  1  Am.  Lead.  Cas.  138 ;  3d  ed. 

856  The  State  v.  Farley,  4  M'Cord,  317. 

857  Hillhouse  v.  Dunning,  6  Conn.  391. 

868  Youug  v.  Miller,  3  Hill,  21 ;   Quinn  v.  O'  Gara,  2  E.  D.  Smith,  388. 

850  1  Starkie  on  Slander.  169 ;  and  see  Turner  v.  Merrywcather,  7  C.  B.  251 ; 
Wakley  v.  Healey,  id.  594;  Gregory  v.  Reg.,  15  Q.  B.  957;  Capel  v.  Jones,  4  C.  B. 
259  ;  Prior  v.  Wilson,  1  C.  B.  N.  S.  95. 

600  Cooper  v.  Greely,  1  Lcnio,  347. 


1SS  WHAT   LANGUAGE   IS   ACTIONABLE. 

dation  of  character,"661  and  all  defamatory  words  injurious  in 
their  nature.662  But  to  sustain*  an  action  for  libel  the  plaintiff 
must  either  show  special  damage  or  "  the  nature  of  the  charge 
must  be  such  that  the  court  can  legally  presume  he  has  been 
degraded  in  the  estimation  of  his  acquaintances,  or  of  the  pub- 
lic, or  has  suffered  some  other  loss  either  in  his  property,  char- 
acter or  business,  or  in  his  domestic  or  social  relations,  in  conse- 
quence of  the  publication.663 

§  177.  It  is  actionable  to  charge  one  in  writing  with  being 
a  villain,664  liar,665  rogue,  rascal,666  swindler,667  drunkard,  cuckold 
and  tory ; m  the  author  or  publisher  of  a  libel  or  slander  ; m  a 


C61  McCorkle  v.  Binns,  5  Binney,  340. 

662  Chaddock  v.  Briggs,  13  Mass.  248.  For  some  definitions  of  libel  see  ante, 
note  18;  The  State  v.  Avery,  7  Conn.  267  ;  Williams  v.  Karnes,  4  Humph.  9; 
Clark  v.  Binney,  2  Pick.  113 ;   Baron  v.  Beach,  5  N.  Y.  Legal  Observer,  448. 

663  Cooper  v.  Stone,  2  Denio,  299 ;  repeated  Bennett  v.  Williamson,  4  Sand.  65. 
"  There  must  be  some  certain  or  probable  temporal  loss  or  damage  to  make  words 
actionable  ;  but  to  impute  to  a  man  the  mere  defect  or  want  of  moral  virtue,  moral 
duties  or  obligations,  which  renders  a  man  obnoxious  to  mankind,  is  not  actiona- 
ble. (De  Grey,  Ch.  J.,  Onslow  v.  Home,  3  Wils.  177,  approved  by  Lawrence,  J., 
Holt  v.  Scholcfield,  6  T.  R.  691.)  But  is  said  (1  Starkie  on  Slander,  2),  "  an  action 
lies  in  respect  of  any  wilful  communication,  oral  or  written,  to  the  damage  of  an- 
other in  law  or  in  fact,  made  without  lawful  justification  or  excuse."  "  A  person 
cannot  say  anything  disparaging  of  another  that  has  not  a  tendency  to  injure 
him  morally  or  professionally."  (Tyndal,  Ch.  J.,  Doyley  v.  Roberts,  3  Bing.  N.  C. 
835  ;   5  Scott,  40.) 

664  Bell  v.  Stone,  1  Bos.  &  P.,  331. 

665  Brooks  t.  Bemis,  8  Johns.  455,  approved  Moore  v.  Bennett,  33  How.  Pra.  R. 
180;  and  see  ante,  note  215.  Liar  and  knave,  see  King's  Case,  4  Inst.  181.  A 
charging  that  one  shot  out  of  a  leather  gun,  meaning  that  he  was  guilty  of  false- 
hood, held  actionable.     {Harmon  v.  Delancy,  2  Str.  89,  and  post,  note  679.) 

666  Rogue,  rascal,  swindler,  villain,  are  libellous.  Cooke  on  Defam.  2.  "  I 
look  upon  him  as  a  rascal,"  actionable.  ( Williams  v.  Karnes,  4  Humph.  9.) 
Felon,  debauchee,  and  seducer,  are  actionable.  (Milled  v.  Hulton,  4  Esp.  Cas.  248.) 

667  F Anson  v.  Stuart,  1  T.  R.  748;  see  note  594,  ante. 

668  Giles  v.  The  State,  6  Geo.  276. 

669  Andreas  v.  Koppenheafer,  3  Ser.  &  R.  255 ;  Colby  v.  Reynolds,  6  Verm.  489  ; 
Vide  v.  Gray,  10  Abb.  Prac.  Rep.  1 ;  Russell  v.  [Agon,  Vin.  Abr.  Act.  for 
Words,  II.  a.  27;  Clark  v.  Binney,  2  Pick,  113.  Held  actionable  to  publish  "a 
report  circulated  by  B.  (the  plaintiff)  against  C,  stating  he,  C,  made  him,  B., 


WHAT    LANGUAGE   IS   ACTIONABLE.  ISO 

hypocrite,  and  using  the  cloa^  of  religion  for  unworthy  pur- 
poses ;  67°  a  miserable  fellow,  it  is  impossible  for  a  newspaper 
article  to  injure  to  the  extent  of  six  cents,  and  that  the  commu- 
nity can  hardly  despise  him  worse  than  they  now  do  ;671  or  with 
having  kidnapped  a  free  colored  man  and  hurried  him  into 
slavery;672  or,  paid  money  to  procure  an  appointment  to 
an  office,  or  received  money  for  offices;673  or,  of  having  been 
deprived  of  the  ordinances  of  the  church;674  or  with  being 
thought  no  more  of  than  a  horse-thief  and  a  counterfeiter  ;675  or, 
with  stinking  of  brimstone  and  having  the  itch  ;676  or,  with  vot- 
ing twice  on  the  same  ballot  for  the  election  of  State  officers  ;677 
with  infracting  a  patent,678  with  falsehood,679  dishonesty,680  smug- 
pay  a  note  twice,  and  proved  by  B.  to  be  false.  (Slielton  v.  Nance,  7  B.  Monr. 
128.)  "A  report  has  gone  abroad  through  the  instrumentality  of  S.  W.  (the 
plaintiff),  stating  that  R.  W.  had  a  load  of  falsely-packed  cotton  bales,  which 
report  is  a  direct  falsehood,"  was  held  actionable.  (  Woodburn  v.  Miller,  Cheves, 
194.)  "  His  slanderous  reports  nearly  ruined  some  of  our  best  merchants,"  held 
actionable.  {Cramer  v.  Noonan,  4  Wis.  231.)  Formerly  a  libeler  was  disqualified 
from  making  a  will.  See  Swinburn  on.  Wills,  P't  1,  §1,etseq.;  Redfield  on 
Wills,  ch.  Ill,  §14  a.,  p.  118,  and  the  author  or  publisher  of  a  libel  could  re- 
ceive no  benefit  under  the  will  of  the  person  libelled.  See  Domat's  Civil  Law, 
B'k  I.,  p't  II.,  title  1,  §  111,  subd.  vii.     Gardiner  v.  Helvis,  3  Lev.  248. 

610  Thorley  v.  Kerry,  4  Taunt.  355. 

671  Brown  v.  Remington,  7  Wis.  462. 

6:2  Nash  v.  Benedict,  25  Wend.  645. 

613  Weed  v.  Fos  er,  11  Barb.  203  ;  and  see  Purdy  v.  Stacey,  5  Burr.  2698. 

674  McCorkle  v.  Binns,  5  Binn.  340. 

675  Nelson  v.  Musgrave,  10  Mis.  648. 

676  Villers  v.  Mvndey,  2  Wils.  4'i3.     In  this  case  the  words  complained  of  were  : 

Old  Villars,  so  strong  of  brimstone  you  smell, 
As  if  not  long  since  you  had  got  out  of  Hell. 
But  this  damnable  smell  I  no  longer  can  bear, 
Therefore  I  desire  you  would  come  no  more  here. 
You  old  stinking,  old  nasty,  old  itchy,  old  toad, 
If  you  come  any  more  you  shall  pay  for  your  board. 
You'll  therefore  take  this  as  a  warning  from  me, 
And  never  enter  the  doors  while  they  belong  to  I.  P. 

617  Walker  v.    Winn,  8  Mass.  248. 

67B  Watson  v.  Trask,  6  Ham.  531. 

679  Cooper  v.  Stone,  24  Wend.  431  ;  Lindley  v.  Ilorton,  27  Conn.  58  ;  Woodburn 
v.  Miller,  Cheves,  194;  Shclton  v.  Nance,  7  B.  Monr.  128,  and  ante,  note  665. 

0B0  Hart  v.  Reed,  1  B.  Monr.  166;  Taylor  v.  Church,  1  E.  I).  Smith,  279,  S.  C. 
on  Appeal,  8  N.  Y.  452;    Fowtcs  v.  Bowcn,  30  N.  Y.  20;    and  see  Henderson  v. 


190  WHAT   LANGUAGE   IS   ACTIONABLE. 

gling,681  blasphemy,682  false  swearing,683  insanity,684  or  being  lit 
for  a  lunatic  asylum,  and  unsafe  to  go  at  large;685  being  guilty 
of  gross  misconduct  in  insulting  females,  &c. ; m  with  want  of 
chastity  ;  ffi7  as  engaged  in  serving  writs  on  the  anti-renters  and 
catchiug  Indians  ;m  or  for  charging  that  plaintiff,  a  married 
man,  went  through  the  ceremony  of  marriage  with  an  actress  j689 
and  to  publish  an  obituary  notice  of  a  living  person,  was  held 
actionable.690  Plaintiff  having  defendant's  bond,  the  validity 
of  which  had  been  long  litigated,  and  advertised  it  for  sale,  a 
statement  of  the  circumstances  under  which  it  was  given,  con- 
cluding with  "  his  object  is  either  to  abstract  money  from  the 
pocket  of  an  unwary  purchaser,  or  what  is  more  likely,  by  this 
threat  of  publication  to  extort  money  from  me;"  held  to  be 
actionable.691  And  held  actionable  to  charge  one  with  an  unau- 
thorized publication  of  private  letters  ;692  or  with  entering  into 
a  corrupt  agreement  to  benefit  himself  at  the  expense  of  the 
public,  and  if  elected  to  the  Senate  would  use  his  influence  to 

Hale,  19  Ala.  154.  Actionable  to  publish  of  one  that  he  had  been  detected  in 
cheating  at  cards.  Livingston  v.  Cheatham,  Pamphlet  Report;  Holt  on  Libel, 
239,  note.     Detected  implies  guilt,  note  220,  ante. 

681  Stillwell  v.  Barter,  19  Wend.  487. 

682  Stow  v.  Converse,  3  Conn.  325,  note  708,  2>ost. 

683  Steele  v.  Southwick,  9  Johns.  214.  The  words  were  :  "  Our  army  swore  ter- 
ribly in  Flanders,  said  Uncle  Toby;  and  if  Toby  were  here  now,  he  might  say 
the  same  of  some  modern  swearers ;  the  man  (meaning  A.  the  plaintiff)  is  no 
slouch  at  swearing  to  an  old  story  ;"  held,  that  these  words,  if  they  did  not  import 
a  charge  of  perjury,  were  libellous,  as  they  held  up  the  plaintiff  to  contempt  and 
ridicule,  as  being  so  thoughtless  or  so  criminal  as  to  be  regardless  of  the  obliga- 
tion of  an  oath." 

684  Southwick  v.  Stevens,  10  Johns.  443  ;  Morgan  v.  Lingen,  8  Law  Times  Rep. 
N.  S.  800;  Rex.  v.  Harvey,  2  B.  &  C.  258;  Rex  v.  Creevey,  1  M.  &  S.  273;  see, 
however,  May  rant  v.  Richardson,  1  Nott  <fe  McCord,  348. 

685  Perkins  v.  Mitchell,  31  Barb.  461. 

686  Clement  v.  Chivis,  9  B.  &  Cr.  172;  4  M.  <fe  R.  127. 

687  Bodwdl  v.  Osgood,  3  Pick,  379. 

688  Hallock  v.  Miller,  2  Barb.  632. 

689  Rex  v.  Kinnersley,  1  W.  Black,  294 ;  and  see  Caldwell  v.  Raymond,  2  Abb. 
Pra.R.  193. 

690  McBride  v.  Ellis,  9  Rich.  Law,  S.  C.  313. 

691  Robertson  v.  McDougall,  4  Bing.  670. 

692  Bacon  v.  Beach,  5  N.  Y.  Legal  Observer,  448. 


WHAT   LANGUAGE   IS   ACTIONABLE.  191 

defeat  the  public  interest  and  benefit  himself;693  or  imputing  to 
one  who  is  an  author  a  disregard  of  justice  and  propriety  as  a 
man,  and  as  being  infatuated  with  vanity,  mad  with  passion, 
and  the  apologist  from  force  of  sympathy  of  another  stigmatized 
with  ingratitude  and  perfidy,  and  as  having  published  as  true 
statements  falsified  and  encomiums  retracted.694  So  it  was  held 
actionable  to  publish  of  one  that  he  was  "  as  versatile  as  Monroe 
Edwards  [a  noted  forger]  in  circumventing  the  law  of  right,695 
or  that  he  was  prominent  in  the  corrupt  legislation  of  last 
winter;696  or  of  one  soliciting  charity  that  she  prefers  unworthy 
claims ; 697  or  of  one  that,  although  aware  of  the  death  of  a 
person  occasioned  by  his  improperly  driving  a  carriage,  he 
attended  a  public  ball  on  the  evening  of  the  same  day ; m  or  of 
one  who  had  contracted  to  relay  a  road  with  new  material  that 
he  had  used  old  material;699  and  held  actionable  where  a  public 
officer  published,  in  a  report  of  an  official  investigation  into  his 
conduct,  the  following  comments  upon  the  testimony  of  a 
witness  before  the  commissioners  of  inquiry  :  "  I  am  extremely 
loath  to  impute  to  the  witness,  or  his  partner,  improper  motives 
in  regard  to  the  false  accusations  against  me ;  yet  I  cannot 
refrain  from  the  remark  that,  if  their  motives  have  not  been 
unworthy  of  honest  men,  their  conduct  in  furnishing  materials 
to  feed  the  flame  of  calumny  has  been  such  as  to  merit  the 
reprobation  of  every  man  having  a  particle  of  virtue  or  honor. 
They  have  both  much  to  repent  of  for  the  groundless  and  base 
insinuations  they  have  propagated  against  me."  70° 

693  P  wers  v.  Bubois,  17  Wend.  63. 

694  Cooper  v.  Stone,  24  Wend.  434. 

695  Cramer  v.  Noonan,  4  Wis.  231. 

698  Littlejohnv.  Greeley,  13  Abb.  Pra.  R.  41. 
691  Hoare  v.  Silverlock,  12  Q.  B.  624. 

098  Churchill  v.  Hunt,  1  Chit.  R.  480. 

699  Baboneau  v.  Farrcll,  27  Eng.   Law  &  Equity  R.  339;  15  Com.  B.  360;  24 
Law  Jour.  R.,  N.  S.,  C.  P.  9 ;  1  Jur.,  N.  S.,  114. 

700  Clark  v.  Binney,  2  Pick.  113.  It  was  held  actionable  to  publish,  If  any 
person  can  ascertain  that  I.  D.  (the  plaintiff)  was  married  previous  to  10  August, 
1799,  with  an  innuendo  meaning  that  lie  was  married  prior  to  the  date  mentioned, 
and  had  another  wife  then  living,  he  being  then  married  to'  E.  his  present  wife. 
(Bdaneyy.  Jones,  4  Esp.  191.) 


192  WHAT   LANGUAGE   IS   ACTIONABLE. 

§  178.  It  is  not  actionable  to  charge  one  in  writing  with 
terms  of  general  abuse,701  or  with  a  breach  of  conventional  eti- 
quette,702 or  with  an  intention  to  put  money  into  Wall  Street  for 
shaving  purposes.703  So  the  words,  "  the  Rev.  John  Robinson 
and  Mr.  James  Robinson,  inhabitants  of  this  town,  not  being 
persons  that  the  proprietors  and  annual  subscribers  think  it 
proper  to  associate  with,  are  excluded  this  room,"  published  by 
posting  a  paper  on  which  they  were  written,  purporting  to  be 
a  regulation  of  a  particular  society,  held  not  to  be  actionable.704 
It  was  held  not  libellous  to  publish  of  one  who  was  a  druggist, 
"  The  above  druggist  refusing  to  contribute  his  mite  with  his 
fellow-merchants  for  watering  Jefferson  Avenue,  I  have  con- 
cluded to  water  the  avenue  in  front  of  his  store  for  one 
week."705  And  held  not  actionable  to  publish  of  one  that 
was  engaged  in  a"  gambling  fracas"  arising  out  of  a  dispute 
at  play,  there  being  no  averment  that  illegal  play  was  in- 
tended.706 Where  a  paragraph  in  a  newspaper  merely  stated  that 
a  bill  had  been  drawn,  and  that  the  acceptance  had  been  forged  or 
obtained  by  fraud,  but  threw  no  imputation  on  the  drawer  (the 
plaintiff),  nor  insinuated  that  the  plaintiff  had  practised  the 
fraud  or  committed  the  forgery,  it  was  held  not  to  amount  to  a 
libel  on  the  plaintiff.707  And  where  it  was  stated  that  the 
plaintiff  purchased  a  newspaper  and  gave  his  note  for  it;  that 
he  was  unable  to  pay  the  note,  and  begged  for  delay ;  and 
that  subsequently,  when  sued  upon  it,  he  pleaded  the  statute  of 
limitations  successfully  ;  held  that,  there  being  no  charge  of 
dishonesty,  the  publication  was  not  libellous.708 


7UI  Tappen  v.  Wilson,  7  Ham.  190. 

702  Clay  v.  Roberts,  8  Law  Times,  N.  S.  397. 


703  Stone  v.  Cooper,  2  Denio,  293. 

104  Robinson  v.  Jermyn,  1  Price,  11. 

705  The  People  v.  Jerome,  1  Manning's  Mich.  R.  142. 

700  Forbes  v.  King,  1  Dowl.  672. 

707  Stocking  v.  Clement,  4  Bing.  162. 

708  Bennett  v.  Williamson,  4  Sand.  60.  Where  the  charge  was,  "This  Major 
Noah,  the  knight  of  the  broken  seal,  who  converted  to  his  own  use  property 
known  to  be  stolen,  meaning  he  obtained  possession  of  a  political  letter  addressed 
to  another  person,  which  he  had  published,"  the  jury  failed  to  agree.  [NodRt 
Case,  3  City  Hall  Recorder,  18.)     Opening  a  letter  and  detaining  it  merely  from 


WHAT   LANGUAGE   IS   ACTIONABLE.  193 

§  179.  There  is  a  distinction  as  to  its  actionable  quality 
between  language  concerning  an  individual  as  such,  and  lan- 
guage concerning  one  in  certain  capacities  or  special  characters. 
Heretofore  in  this  chapter  the  attention  has  been  solely  directed 
to  language  concerning  an  individual  as  su.ch;  we  have  now  to 
consider  what  language  concerning  one  in  certain  acquired 
capacities  or  special  characters  is  actionable  jper  se  f  Language 
which  is  actionable,  if  published  of  an  individual  as  such,  does 
not  cease  to  be  actionable  because  published  of  one  in  a  special 
character ;  and  all  language  which  is  actionable  as  concerning 
an  individual  as  such,  must  also  be  actionable  when  it  concerns 
him  in  any  special  character  of  the  kind  presently  to  be  men- 
tioned. Our  present  inquiry  is  limited  to  that  language  which, 
not  being  actionable  when  published  of  an  individual  as  such, 
becomes  actionable  when  published,  and  because  it  is  pub- 
lished, of  him  in  some  special  character  or  relation.  The  effect 
of  the  special  character  of  the  publisher,  and  of  the  person  to 
whom  the  publication  is  made,  will  be  considered  under  the 
head  of  defences.  "Where  the  language  is  actionable  as  con- 
cerning an  individual  as  such,  it  is  unimportant  and  unneces- 
sary, except  in  some  cases  as  affecting  the  amount  of  damages, 
to  inquire  further  whether  such  language  is  also  actionable  as 
concerning  him  in  some  special  character ;  thus,  where  an 
action  was  for  language  alleged  to  be  concerning  the  plaintiff 
generally  and  concerning  him  as  an  attorney,  the  language 
being  actionable  as  concerning  the  plaintiff  generally,  it  was 
held  that  he  might  sustain  the  action  without  proof  of  his  be- 
ing an  attorney.709 

§  180.  The  distinction  maintained  between  oral  and  written 
language,  as  regards  its  actionable  quality  when  published  con- 
cerning an  individual  as  such,  is  not  recognized  in  regard  to 
language  concerning  one  in  a  special  character.  As  respects 
language  concerning  one  in  a  special  character,  it  makes  no 
difference  in  regard  to  its  actionable  quality,  whether  it  be  pub- 
curiosity  or  political  motives,  held  to  be  a  trespass  only,  and  not  a  felony.  (Rex 
V.  Godfrey, $  C.  &  P.  5(53.) 

'°9  Lewis  v.  Walter,  4  D.  &  Ry.  810 ;  3  B.  &  C.  138. 
13 


194:  WHAT   LANGUAGE   IS   ACTIONABLE. 

lislied  orally  or  in  writing.710  Because  the  language  in  writing 
which  concerns  one  in  a  special  character,  is  usually  actionable 
when  published  concerning  the  individual  as  such,  and  without 
reference  to  his  special  character ;  it  is  almost  exclusively  in 
respect  to  oral  language  that  questions  arise  as  to  whether  it  is 
or  is  not  actionable  as  affecting  one  in  a  special  character. 

§  181.  In  connection  with  our  present  inquiry,  it  must  be 
remembered  that  no  special  character  which  one  may  occupy 
can  enhance  his  rights  to  protection,  for  that  would  be  in  dero- 
gation of  the  rule  to  which  reference  has  heretofore  been  made 
(§  138).  Whatever  may  be  the  special  character,  the  right 
must  be  the  same  as  the  right  of  every  other  individual,  the 
right  that  no  one  shall,  without  legal  excuse,  publish  language 
concerning  another  or  the  affairs  of  another  which  shall  occa- 
sion him  damage  (§§  70,  49),  that  is,  pecuniary  loss.  But 
although  one  by  virtue  of  his  special  character  has  no  right 
superior  to  that  of  an  individual  as  such,  and  who  does  not 
possess  any  special  character,  yet  it  must  be  obvious  that  one 
may  occupy  a  position  in  society  which  will  render  it  easier  to 
occasion  him  damage  than  to  occasion  damage  to  one  not  so 
situated.  The  position  of  a  person  may  render  him  peculiarly 
obnoxious  to  injury.  It  is  this  special  susceptibility  to  injury 
alone,  that  creates  the  distinction  between  the  actionable  qual- 
ity of  language  when  it  concerns  one  in  a  special  character  and 
when  it  concerns  him  only  as  an  individual.  It  is  not  every 
special  character  the  possession  of  which  renders  its  possessor 
more  than  ordinarily  susceptible  to  injury  by  language,  and 
this  being  so  we  have  to  ascertain  which  are  the  special  char- 
acters that  have  such  an  effect.  It  is  not  possible  to  particu- 
larize the  special  characters  which  entail  this  greater  degree  of 
liability  to  injury,  but  it  may  be  stated  generally  that  every 
legal  occupation  or  position  from  which  pecuniary  benefit  may 
or  possibly  can  be  derived,  will  create  in  the  follower  of  such 
occupation,  or  the  holder  of  such  position,  that  peculiar  or 

710  Holt  on  Libel,  218.  But  he  adds,  "though  defamation  when  written  may 
be  actionable  under  certain  circumstances  when  the  same  words  if  spoken  would 
not."     See  in  note  15,  ante,  and  note  711,  post 


WHAT   LANGUAGE   IS  ACTIONABLE.  195 

special  susceptibility  to  injury  by  language  to  which  reference 
has  already  been  made ;  and  hence  results  this  rule  that  lan- 
guage concerning  one  in  any  such  lawful  occupation  or  position 
may.  as  a  necessary  consequence,  occasion  him  damage  which 
would  not  have  that  consequence  if  it  concerned  him  as  an  in- 
dividual merely;  and  therefore,  as  heretofore  (§  132)  observed, 
language  which  would  not  be  actionable  if  it  concerned  only 
an  individual  as  such,  may  be  actionable  if  it  concerns  him  in 
his  special  character.711  The  rule  which  makes  language  con- 
cerning one  in  a  special  character  sometimes  actionable,  when 
the  same  language  concerning  one  as  an  individual  merely 
would  not  be  actionable,  is  in  reality  nothing  more  than  a 
phase  of  the  rule  (§  134)  that  language  connected  with  any 
fact  affecting  its  meaning  or  effect,  must  be  construed  in  con- 
nection with  such  fact.  The  language  being  connected  with 
the  fact  of  the  special  character  of  the  person  whom  it  con- 
cerns, must  be  construed  in  reference  to  such  special  character. 

§  182.  Limiting  ourselves  for  the  present  to  occupations,  we 
conclude  that  subject  only  to  the  conditions  (1)  that  the  occu- 
pation is  one  in  which  a  person  may  lawfully  be  engaged,  and 
(2)  that  it  is  an  occupation  which  does  or  reasonably  may  yield, 
or  may  be  expected  to  yield,  pecuniary  reward,  there  is  no  em- 
ployment— call  it  business,  trade,  profession  or  office,  or  what 
you  will712 — so  humble  or  so  exalted  but  that  language  which 
concerns  the  person  in  such  his  employment  will  be  actionable, 
if  it  affects  him  therein  in  a  manner  that  may,  as  a  necessary 
consequence,  or  does  as  a  natural  and  proximate  consequence, 


711  Brown  v.  Smith,  13  C.  B.  596.  "  For  the  reason  that  from  the  nature  of 
the  case  it  is  evident  damage  must  ensue."  (McMillen  v.  Birch,  1  Binn.  178.) 
"  The  law  has  always  been  very  tender  of  the  reputation  of  tradesmen,  and 
therefore  words  spoken  of  them  in  the  way  of  their  trade  will  bear  an  action 
that  will  not  be  actionable  in  the  case  of  another  person;  and  if  bare  words  are 
so,  it  will  be  stronger  in  the  case  of  a  public  newspaper  which  is  so  diffusive." 
(Harman  v.  Delany,  2  Str.  898.) 

712  Business  includes  trade  and  more.  "Trade  has  a  more  restricted  meaning 
than  business."  {Harris  v.  Amen/,  1  Law  Rep.  154,  C.  P.)  The  word  Business 
embraces  everything  about  which  a  person  can  be  employed.  (Barker  Mills  v. 
Com'rs  of  Taxes,  26  N.  Y.  244.) 


196  WHAT  LANGUAGE   IS   ACTIONABLE. 

prevent  him  deriving  therefrom  that  pecuniary  reward  which 
probably  he  might  otherwise  have  obtained.713  We  state  the 
rule  much  broader  than  usual.  Ordinarily  it  is„said  that  the 
language  must  concern  one  in  his  business,  profession,  or  office, 
and  then  is  discussed  what  occupations  are  comprised  within 
the  terms  business  or  profession,  and  what  kind  of  office  is  in- 
tended. In  one  case714  it  was  said  obiter  that  to  call  a  woman 
who  taught  children  to  read  and  write  (a  school-teacher  or 
school-mistress)  a  whore  was  not  actionable,  because  she  was 
not  in  a  business  or  profession.  For  the  same  reason,  Lord 
Hale,  in  another  case,  was  for  denying  the  light  to  recover  to 
a  letter-carrier  charged  with  breaking  open  letters.  The  tenor 
of  his  Lordship's  remarks  were,  that  if  such  an  action  could  be 
maintained,  a  man  should  not  speak  disparagingly  of  his 
cook  or  his  groom  but  an  action  would  be  brought.715  It  was 
said  of  a  renter  of  tolls  that  he  was  not  in  a  business  or  pro- 
fession in  which  he  could  be  slandered  or  libelled,716  and  the 
like  was  held  of  a  stock  broker.717     On  the  other  hand,  it  has 

713  Foulger  v.  Newcomb,  2  Law  Rep.  327,  Ex.     See  note  715,  post. 

714  Wharton  v.  Brook,  1  Vent.  21.  Where  I.  S.  said  to  A.,  who  kept  a  stable 
and  received  horses  at  livery  (a  livery-stable  keeper),  "Thou  buyest  nothing  but 
rotten  hay  to  poison  men's  horses,"  it  was  held  that  A.  could  not  maintain  an 
action  therefor  because  he  was  not  of  any  trade  allowed  in  law.  (Jones  v.  Joke, 
Vin.  Abr.  Act.  for  Words,  U.  a.  7.)  Livery-stable  keeping  is  recognized  as  a 
business  in  which  one  may  be  libelled.  See  Southam  v.  Allen,  Raym.  231 ;  Alex- 
ander v.  Angle,  1  Cr.  &  J.  143. 

716  1  Vent.  275.  "  The  humility  of  the  employment  or  occupation  seems  no 
objection  to  the  action,  either  in  law  or  in  reason."  (1  Statkie  on  Slander,  128  ; 
and  see  Cooke  on  Defam.  21 ;  Terry  v.  Hooper,  Lev.  115.)  In  Coekaine  v.  Hop- 
kins, 2  Lev.  214,  the  plaintiff  alleged  that  he  used  the  art  of  buying  and  selling 
and  gained  great  profit  thereby,  and  that  defendant  said  of  him,  He  is  a  runa- 
gate, whereby  he,  plaintiff,  lost  his  customers,  but  did  not  allege  special  damage  ; 
after  verdict  for  plaintiff,  judgment  was  arrested  because,  as  the  court  said,  run- 
agate was  not  equivalent  to  bankrupt,  and  as  plaintiff  did  not  allege  what  trade 
he  followed,  it  might  be  a  tinker  or  pedlar,  who  are  rogues  by  statute.  This  pre- 
suming that  plaintiff's  trade  is  unlawful  was  done  in  Morris  v.  Lnngdale,  2  Bos. 
&  Pul.  284  ;  but  at  this  day  the  presumption  would  be  the  other  way.  See  post, 
note  727. 

116  Bellamy  v.  Bureh,  16  M.  &,  W.  590  ;  8  Law  Times,  413 ;  and  see  Sellars  v. 
Killew,  7  Dowl.  &  R.  121 ;  4  B.  &  C.  55. 

717  Morris  v.  Langdale,  2  Bos.  &  Pul.  284. 


WHAT   LANGUAGE   IS   ACTIONABLE.  197 

been  held  that  the  business  need  not  be  one  which  renders  him 
who  follows  it  liable  as  a  trader  to  the  bankrupt  law,718  and  that 
the  same  rule  applies  to  a  mere  trader  or  retail  dealer  as  to  a 
merchant.719  It  was  supposed  formerly  that  the  rule  was  lim- 
ited to  occupations  by  which  the  person  whom  the  language 
concerned  obtained  his  livelihood  or  "daily  bread  ;"  but  such 
a  limitation,  if  it  ever  existed,  no  longer  prevails.  It  is 
now  held  to  be  sufficient  if  the  person  whom  the  language 
concerns  habitually  (as  distinguished  from  occasionally)  acts  in 
or  pursues  the  occupation  to  derive  an  emolument  from  it.720 
"Where  it  was  objected  against  the  plaintiff's  right  to  recover 
that  it  was  not  alleged  he  got  his  living  by  his  occupation,  the 
objection  was  overruled.721 

§  183.  We  mentioned  in  the  last  preceding  section  (§  182) 
as  one  of  the  conditions  to  the  right  of  action  for  language  con- 
cerning one  in  his  occupation,  that  the  occupation  must  be  a 
lawful  one.  It  is  a  universal  rule,  of  which[very  numerous 
examples  are  to  be  found  in  the  reports,  that  one  engaged  in  an 
unlawful  pursuit  cannot  recover  for  work  done  or  goods  sold  by 
him,  nor  for  any  injury  he  may  sustain  in  such  occupation;722 

718  Whitaker  v.  Bradley,  7  D.  &  R.  649  ;  S.  C.  Whittington  v.  Gladwin,  5  B.  & 
C.  180  ;  2  Car.  &  P.  146. 

719  Gates  v.  Bowker,  8  Verm.  (3  Wash.)  23  ;  Ostrom  v.  Calkins,  5  Wend.  264  ; 
Carpenter  v.  Dennis,  3  Sandf.  305. 

720  Baboneau  v.  Farrell,  15  C.  B.  360  ;  Bryant  v.  Loxton,  11  Moore,  344  ;  Davis 
v.  Davis,  1  Nott  &  M'C.  290.  "The  action  seems  to  extend  to  words  spoken  of  a 
person  in  any  lawful  employment  in  which  he  may  gain  his  livelihood."  (1  Star- 
kie  on  Slander,  127.)  "  It  does  not  appear  to  be  necessary  that  the  party  should 
gain  his  living  in  the  character  to  which  the  slander  is  applied,  but  it  is  sufficient 
if  he  habitually  act  in  that  character  and  derive  emolument  from  it.     (Id.  129.) 

721  Dobson  v.  Thor stone,  3  Mod.  112. 

799  Timmerman  v.  Morrison,  14  Johns.  369;  Allcottw.  Barber,  1  Wend.  526; 
Smith  v.  Tracy,  2  Hall,  465;  Bailey  v.  Mogg,  4  Denio,  60;  Finch  v.  Gridley,  25 
Wend.  469;  Smith  v.  Wilcox,  24  N.  Y.  353;  S.  C.  19  Barb.  581,  and  25  Barb.  341 ; 
Cundell  v.  Dawson,  4  C.  B.  476 ;  Best  v.  Bander,  29  How.  Pr.  E.  489 ;  Ferdon  v. 
Cunningham,  20  id.  154;  Cope  v.  Rowland,  2  M.  <fc  W.  149;  Smith  v.  Mawhood,  14 
M.  &  W.  452 ;  Seneca  County  B'k  v.  Lamb,  26  Barb.  595 ;  Barton  v.  Port  Jackson 
Flank  Road,  17  Barb.  397;  Griffith  v.  Wills,  3  Denio,  227;  BeU  v.  Quinn,  2  Sandf. 
146;  Taylor  v.  Crowland  Gas  Co.,  10  Ex.  293  ;  18  Jar.  913;  '26  Eng.  Law  &  Eq. 
R.  460 ;  Cowan  v.  MUbourn,  2  Law.  Rep.  230,  Ex. ;  2  Tars,  on  Cont.  259 ;  Story 
on  Contr.  620. 


198  WHAT   LANGUAGE   IS   ACTIONABLE. 

hence,  for  language  concerning  a  person  in  an  unlawful  occu- 
pation, an  action  is  not  maintainable.  Thus  it  was  held  that 
pugilistic  exhibitions  being  illegal,  one  could  not  maintain  an 
action  for  language  affecting  him  as  proprietor  of  a  tennis  court 
where  such  exhibitions  were  made  ;723  and  semlle  one  who  prac- 
tices as  a  physician  without  being  duly  licensed,  cannot  main- 
tain an  action  for  language  concerning  him  as  a  physician.724 
The  fact,  however,  that  a  person  is  engaged  in  an  unlawful  oc- 
cupation is  no  reason  for  his  not  being  allowed  his  action  for 
any  language  concerning  him  as  an  individual,  or  concerning 
him  in  any  other  and  lawful  occupation  in  which  he  may  be 
engaged.725  If  the  language  be  actionable  as  concerning  the 
person  as  an  individual  merely,  it  is  unimportant  and  unneces- 
sary to  inquire  further  whether  he  is  in  any  or  in  what  occupa- 
tion, legal  or  otherwise.726  If  the  illegality  of  the  occupation 
proceeds  from  the  fact  that  the  person  following  it  is  nut  duly 
licensed,  the  burden  is  on  the  publisher  to  show  that  the  person 
whom  the  language  concerns  was  unlicensed.727 

§  184.  As  to  the  kind  of  office  which  one  must  hold  to  ren- 
der actionable  language  which  concerns  him  in  such  office,  it  is 
laid  down  by  Starkie,  but  as  we  conceive  erroneously,  that 
"  words  are  equally  actionable  whether  the  office  be  lucrative  or 
merely  confidential."728     Pecuniary  loss  is  the  gist  of  the  action 

723  Hunt  v.  Bell,  1  Bing.  1. 

724  Marsh  v.  Davison,  9  Paige,  580,  referring  to  a  statute  since  repealed. 

725  Yrisarriv.  Clement,  2  C.  &  P.  223;  3  Bing.  432;  11  Moore,  308;  OreviUe 
V.  Chapman,  1  D.  &  M.  553.  In  Manning  v.  Clements,  7  Bing.  362 ;  5  M.  &  P. 
211,  the  plaintiff  alleged  he  was  a  manufacturer  of  bitters,  and  defendant  was 
allowed  to  introduce  evidence  of  the  illegality  of  such  manufacture  (namely,  that 
the  alleged  bitters  were  another  and  a  prohibited  article),  not  as  a  justification, 
but  in  contradiction  of  plaintiff's  allegation. 

726  Harwood  v.  Astley,  4  Bos.  &  P.  47 ;  1  New  Rep.  47. 

727  Fry  v.  Bennett,  28  N.  Y.  324;  Smith  v.  Joyce,  12  Barb.  25. 

728  1  Starkie  on  Slander,  119.  He  states  that  the  whole  class  of  cases  in  which 
recovery  has  been  had  for  words  affectiug  one  in  office  not  lucrative,  "seems  to 
rest  on  more  dubious  principles  than  any  other."  At  page  122  he  says — erro- 
neously as  we  conceive — "  the  clanger  of  exclusion  from  office  gives  rise  to  the 
action."  And  at  page  118  he  says  the  ground  of  action  is  "  somewhat  different" 
according  as  the  office  is  confidential  or  lucrative.     And  at  page  124  he  says 


WHAT   LANGUAGE   IS   ACTIONABLE.  199 

for  slander  or  libel  (§  57) ;  and  as  no  pecuniary  loss  can  result 
from  language  concerning  one  in  an  office  which  yields  no  pecu- 
niary emolument,  words  not  otherwise  actionable  cannot  be- 
come so  because  they  concern  one  in  such  an  office.729  What- 
ever may  have  been  the  doctrine  and  practice  of  the  Court  of 
Star-chamber,  or  of  the  common  law  courts  under  the  statutes 
scandalum  magnatum,  we  believe  that  no  court,  proceeding 
according  to  the  common  law  and  independently  of  any  statute, 
has  sanctioned  the  doctrine  as  laid  down  by  Starkie.  Wher- 
ever language  concerning  one  in  an  office  merely  honorary,  has 
in  a  common  law  court  and  independently  of  any  statute,  been 
held  actionable,  it  will  be  seen  that  the  language  would  have 
been  actionable  had  it  been  published  of  an  individual  as  such. 

§  185.  Another  relation  or  special  character  in  which  one 
may  be  injuriously  affected  by  language,  is  that  of  partner. 
Language  may  concern  partners  or  one  or  some  of  several  part- 
ners in  their  or  his  individual  capacity  merely,  or  it  may  touch 
them  or  him  in  their  or  his  partnership  business.  As  respects 
language  concerning  one  who  is  a  partner,  and  which  concerns 
him  as  an  individual  merely,  the  fact  of  his  being  a  partner,  un- 
less, perhaps,  as  affecting  the  damages,  has  no  significance. 
Language  concerning  partners  in  their  partnership  business  may 
be  actionable  per  se,  or  actionable  only  by  reason  of  the  special 
damage.  That  language  touching  the  business  which  would  be 
actionable  per  se  if  jmblished  concerning  one  who  is  not  a  part- 
ner, would  also  be  actionable  per  se  as  concerning  partners  or 
one  who  is  a  partner.     Actionable  language  concerning  part- 

"the  action  appears  to  extend  to  all  offices  of  trust  or  profit  without  limitation, 
provided  they  be  of  a  temporal  nature."  This  word  temporal  is  used  as  the  con- 
verse of  spiritual,  to  take  away  the  ecclesiastical  jurisdiction. 

729  Gallwey  v.  Marshall,  9  Ex.  294.  In  that  action  the  language  [oral]  imputed 
incontinence  to  a  clergyman.  The  court,  in  deciding  against  the  plaintiff,  said: 
We  should  have  no  doubt  of  the  plaintiff's  right  to  recover  if  the  declaration  had 
averred  that  he  was  beneficed,  or  was  in  the  actual  receipt  of  professional  temporal 
•  nolument,  *  *  as  the  charge  would  have  caused  the  loss  of  the  benefice  or 
the  emoluments.  In  the  absence  of  any  averment  of  plaintiff  having  any  office 
of  temporal  [pecuniary]  profit,  we  are  not  satisfied  this  action  will  lie.  There  is 
no  authority  that  it  will  where  there  is  no  actual  damage. 


200  WHAT   LANGUAGE  IS   ACTIONABLE. 

ners  and  which  touches  them  in  their  partnership  business,  is 
an  injury  to  their  joint  business,  and  is  a  joint  and  several  in- 
jury for  which  both  may  sue  jointly  or  either  may  sue  sepa- 
rately. Tims  where  the  language  imputed  to  two  persons  who 
were  partners  as  wool-staplers,  that  they  had  been  guilty  of 
fraud  in  a  sale  of  wool,  and  they  sued  jointly,  alleging  special 
damage  to  their  trade,  the  action  was  sustained.730  For  words 
charging  partners  with  making  an  assignment  to  defraud  their 
creditors,  an  action  by  one  partner  was  allowed  ;731  and  where 
the  firm  was  charged  with  insolvency,  the  language  used  being 
"  J.  T.  &  Co.  are  down,"  held  a  joint  action  might  be  main- 
tained.732 In  such  a  joint  action  no  damages  are  recoverable 
for  the  injury  to  the  feelings  of  the  partners.733  Where  language 
concerns  one  only  of  several  partners  but  touches  him  in  his 
partnership  business,  there  is  an  injury  to  the  partnership  busi- 
ness for  which  the  partner  whom  the  language  concerns  may 
sue  alone  or  all  the  partners  may  unite  with  him.  Thus  where 
the  language  was  of  one  of  several  partners  as  bankers,  and 
imputed  to  him  insolvency,  and  for  this  he  alone  brought  suit 
alleging  damage  to  the  partnership  business,  it  was  pleaded  in 
abatement  that  the  plaintiff  carried  on  his  business  jointly  with 
A.  B.,  and  that  the  alleged  damage  accrued  to  A.  B.  jointly 
with  the  plaintiff  alone.  On  general  demurrer  the  plea  was 
overruled,  but  a  question  was  raised  whether  a  special  demur- 
rer might  not  have  been  interposed  to  the  declaration  for  unit- 
ing damages  which  accrued  to  the  plaintiff  with  damages  which" 
accrued  to  his  partner.  In  other  words,  as  the  damage  to  the 
business  was  jointly  to  the  plaintiff  and  his  partners,  was  it 
proper  for  plaintiff  to  allege  them  in  his  declaration  %  It  was 
assumed  that  on  the  trial  the  jury  would  separate  the  dam- 

730  Cookr.  Batchelor,  3  Bos.  &  Pul.  150;  see  note  to  Goldstein  v.  Foss,  2  Car. 
&  P.  252. 

731  Odiorne  v.  Bacon,  6  Cush.  185. 

732  Titus  v.  Follett,  2  Hill,  318 ;  and  see  Foster  v.  Lawson,  3  Bing.  452 ;  Le  Fanu 
v.  Malcomson,  1  CI.  &  Fin.  N.  S.  631;  Ma>tlandy.  Ooldney,  2  East,  426 ;  Beardslry 
t.  Tappan,  Ms.  decided  in  U.  S.  Circuit  Co't  Sout.  Dist.  N.  Y.,  October,  1867. 
See  Corporations. 

733  Haythom  v.  Lawson,  3  Car.  &  P.  196. 


WHAT   LANGUAGE   IS   ACTIONABLE.  201 

ao-es;734  and  in  other  cases,  one  of  several  partners  sustained  an 
action  for  libel  on  him  in  his  business.735  Where  the  language 
published  purported  to  give  information  as  to  the  credit  and 
standing  of  a  mercantile  firm  and  charged  one  member  with 
dishonesty,  a  joint  action  by  all  the  partners  was  sustained.736 
Where  the  partners  unite  in  the  action,  or  where  the  partner 
whom  the  language  concerns  sues  alone,  in  either  case  the  lan- 
guage being  of  the  kind  called  actionable  per  se  (§§  146,  147), 
the  action  may  be  maintained  without  any  allegation  or  proof 
of  special  damage ; 737  but  where  a  partner  whom  the  language 
does  not  personally  concern  sues  alone  for  language  personally 
concerning  his  partner,  in  that  case  the  action  cannot  be  main- 
tained unless  there  be  an  allegation  and  proof  of  special  dam- 
age. A  recovery  by  the  partner  whom  the  language  personally 
concerns  would  not  bar  an  action  by  his  partner,  and  probably 
would  not  bar  a  separate  action  by  all  the  partners ;  nor  would 
a  recovery  by  all  the  partners  be  a  bar  to  a  separate  action  by 
the  partner  whom  the  language  personally  concerns.738 

§  186.  The  circumstance  of  one  being  heir  presumptive 
has  been  held  to  give  an  actionable  quality  to  language  con- 
cerning him  in  that  character.  Starkie  devotes  a  chapter  to  a 
partial  review  of  the  cases  in  which,  on  the  ground  that  it  may 
cause  his  disinherison,  it  has  been  held  actionable  to  call  a  pre- 
sumptive heir  bastard,  and  he  concludes  that,  although  such 
decisions  carry  the  doctrine  of  presumptive  loss  to  a  great 
extent,  they  seem  to  be  warranted  by  the  application  of  sound 
and  general  principles.  He  does  not  state  what  those  princi- 
ples are,  and  for  ourselves  we  can  discover  no  principle  which 
will  support  such  decisions.     It  certainly  is  not  a  necessary  con- 

734  Robinson  v.  Marchant,  7  Q.  B.  (Adol.  «fe  Ell.  N.  S.)  918. 

735  FiJler  v.  Delavan,  20  Wend.  57 ;  and  see  Solomon  v.  Ifedex,  1  Stark.  Cas. 
191 ;  Harrison  v.  Bevington,  8  Car.  <fe  P.  708,  and  Davis  v.  Ruff,  Cheves,  17.  This 
last-named  case  is  commented  on  in  Taylor  v.  Church,  1  E.  D.  Smith,  287. 

™\T<tylor  v.  Church,  1  E.  D.  Smith,  279 ;  S.  C.  8  N.  Y.  452. 

737  Id. ;  2  Saund.  PI.  &  E v.  117  a.  117  b.  6  cd. ;  and  see  Foster  v.  Lawson,  3 
Bing.  452;   11  Moore,  360. 

738  Taylor  v.  Church,  1  E.  D.  Smith,  287. 


202  WHAT   LANGUAGE   IS   ACTIONABLE. 

sequence  that  one  should  disinherit  his  presumptive  heir  because 
it  has  been  said  of  him  that  he  is  a  bastard. 

§  187.  One  being  a  candidate  for  an  office  or  for  employ- 
ment does  not  have  the  effect  to  make  language  concerning 
him  in  that  character  actionable  per  se,  otherwise  than  as  it 
would  be  actionable  per  se  if  it  concerned  him  as  an  individual 
merely.739  If  the  language  concerning  a  candidate  fur  office  or 
employment  occasions  him  special  damage,  as  the  failure  to 
obtain  such  office  or  employment,  it  will  be  actionable  ;  thus  if 
a  clergyman  is  to  be  presented  to  a  benefice,  and  one  to  defeat 
him  says  to  the  patron,  He  is  a  heretic,  or  a  bastard,  or  excom- 
municated, and  he  thereby  loses  his  presentment,  he  may  have 
his  action  ;740  and  where  a  lawyer  was  a  candidate  for  the  office 
of  steward  of  a  corporation,  and  the  electors  being  assembled 
to  make  an  election,  one  of  them  said  to  the  others,  He  (said 
candidate)  is  an  ignorant  man  and  not  fit  for  the  place,  by 
means  of  which  he  was  refused,  the  court  inclined  to  the  opin- 
ion that  the  words  were  actionable,  but  no  judgment  was 
given.741  The  fact  of  one  being  a  candidate  for  an  office  or  for 
employment,  in  many  instances  affords  a  license  or  legal  excuse 
for  publishing  language  concerning  him  as  such  candidate,  for 
which  publication  there  would  be  no  legal  excuse  did  he  not 
occupy  the  position  of  such  a  candidate.  The  consideration  of 
language  concerning  one  as  a  candidate  for  office  or  for  em- 
ployment, falls  more  appropriately  under  the  head  of  legal 
excuses  or  defences,  and  it  will  be  there  discussed. 

8  188.  As  regards  the  kind  of  lano-uao-e  concerning  one  in 
an  occupation  or  office  which  will  confer  a  right  of  action,  it 
has  been  said :  "  Words  are  actionable  when  spoken  of  one  in 
an  office  of  profit,  which  may  probably  occasion  the  loss  of  his 

739  Powers  v.  Dubois,  17  Wend.  63  ;  Prinn  v.  Howe,  Brown's  Cas.  Pari.  64  ; 
Littlejohn  v.  Grecly,  13  Abb.  41 ;  Hunt  v.  Bennett,  4  E.  D.  Smith,  647 ;  19  N.  Y. 
173. 

740  Davis  v.  Gardiner,  4  Rep.  17  a. 

741  Sandirson  v.  Ruddes,  Mar.  146.  Words  which  will  cause  others  not  to  vote 
for  him  of  whom  they  were  spoken,  at  an  election  at  which  he  is  a  candidate,  are 
actionable.     (Brewer  v.   Weakley,  2  Overt.  99.) 


WHAT  LANGUAGE   IS  ACTIONABLE.  203 

office,  or  where  spoken  of  persons  touching  their  respective 
professions,  trades  and  business,  and  do  or  may  probably  tend 
to  their  damage.742  "If  the  words  be  of  probable  ill  conse- 
quence to  a  person  in  a  trade  or  profession  or  an  office ; " 743 
Bayley,  B.,  objected  to  this  rule  that  the  words  probably  and 
probable  were  too  indefinite,  and  unless  considered  equivalent  to 
"  having  a  natural  tendency  to  "  and  as  confined  within  the 
limits  of  showing  the  want  of  some  necessary  qualification  or 
some  misconduct  in  the  office,  it  went  beyond  what  the  author- 
ities warranted.744  But,  "  How  is  a  natural  stronger  [more 
definite]  than  a  probable  tendency  ?" 745  To  maintain  an  action 
for  words  spoken,  they  must  impute  some  matter  in  relation  to 
the  party's  particular  trade  or  vocation,  and  which,  if  true, 
would  render  him  unworthy  of  employment.746  "  Every  author- 
ity which  I  have  been  able  to  find  either  shows  the  want  of 
some  general  requisite,  as  honesty,  capacity,  fidelity,  &c.,  or 
connects  the  imputation  with  the  plaintiff's  office,  trade  or  busi- 
ness ;"747  or  his  office  of  trust  and  place  of  honor,  provided  they 
be  of  a  temporal  nature ; 748  and  "  We  ought  not  to  extend  the 

742  De  Grey,  Ch.  J.,  Onslow  v.  Home,  2  Wils.  186. 

743  Same  case,  as  reported  2  W.  Bl.  R.  753. 

744  Lumby  v.  A  May,  1  Cr.  &  J.  301 ;  1  Tyrw.  217. 

745  Williams,  J.,  James  v. Brook,  9  Q.  B.  7 ;  and  see  Sibley  v.  Tomlins,  4  Tyrw.  90. 

746  K'nmey  v.  Nash,  3  N.  Y.  177  ;  Fowles  v.  Bowen,  30  N.  Y.  24. 

747  Bayley,  B.,  Lumby  v.  Allday,  1  Or.  A  J.  301;  1  Tyrw.  217 ;  approved  Ayre 
v.  Craven,  2  Adol.  <fc  El.  2 ;  2  Nev.  &  M.  220 ;  and  see  Jones  v.  Littler,  7  M.  &  W. 
433  ;  Southee  v.  Denny,  1  Ex.  196  ;  James  v.  Brooke,  9  Q.  B.  7. 

748  How  v.  Prinn,  Holt,  652 ;  S.  C.  Prinn  v.  Howe,  Brown's  Cas.  Pari.  64 ;  1 
Starkie  on  Slander,  124.  "  A  distinction  is  usually  taken  between  an  office  of 
profit  and  an  office  of  honor,  but  the  distinction  is  not  a  sound  one,  and  though  it 
may  apply  to  an  action  for  words,  it  does  not  extend  to  an  action  for  libel."  If  a 
person  be  in  an  office  of  profit,  it  is  libellous  to  impute  to  him  either  inability, 
want  of  integrity,  or  anything  which  amounts  to  it.  But  if  the  office  be  an 
office  of  honor,  it  is  said  no  action  lies  except  the  import  of  the  words  be  a  charge 
of  dishonesty.  In  either  case  charging  a  man  with  inclinations  and  principles 
which  show  him  unfit  for  an  office  of  trust  or  honor  is  libellous,  without  charging 
him  with  any  act.  Any  imputations  against  a  person  who  is  in  the  enjoyment  of 
an  office,  either  public  or  private,  of  honor,  profit  or  trust,  which  imports  a  charge 
of  unfitness  to  administer  the  duty  of  the  office,  are  libels."  (Holt  on  Libel, 
208.)  Words  which  charge  a  breach  of  a  public  trust  are  actionable.  See  Kin- 
ney v.  Nash,  3  N.  Y.  178. 


204  WHAT  LANGUAGE   IS   ACTIONABLE. 

limits  of  actions  of  tliis  nature  beyond  those  laid  down  by  our 
predecessors."749  Although  every  lawful  lucrative  occupation 
is,  as  regards  the  actionable  quality  of  language,  governed  by 
the  same  general  principles,  yet  the  kind  of  occupation  affects 
the  application  of  the  principles,  and  the  identical  language 
which  may  be  not  actionable  as  concerning  one  in  some  certain 
occupation,  may  be  actionable  as  concerning  one  in  some  other 
occupation.  The  test  in  every  case  by  which  to  decide  if  the 
language  be  actionable,  meaning  actionable  per  se,  is,  does  it 
necessarily  occasion  damage  ;  and  because  the  language  which 
may  necessarily  occasion  damage  in  one  occupation  will  not 
have  that  effect  in  some  other,  it  happens  that  in  every  case  re- 
gard must  be  had  to  the  character  of  the  occupation.  Numer- 
ous illustrations  of  this  are  to  be  found  in  the  subsequent  part 
of  this  chapter.  We  select  one  instance :  In  the  case  of  a  mer- 
chant the  keeping  of  account  books  is  or  is  considered  to  be  a 
requisite  to  the  successful  prosecution  of  his  business,  and  there- 
fore to  charge  one  who  is  a  merchant  with  keeping  false  books 
has  been  held  to  be  actionable,750  but  the  like  charge  concerning 
a  farmer  was  held  not  actionable,  because  the  keeping  of  books 
was  not  considered  requisite  to  the  conduct  of  his  business, 
although  in  addition  to  his  business  of  farmer  he  sawed  logs  for 
reward  and  dealt  in  lumber.751 


749  Pollock,  Ch.  B.,  Gallwey  v.  Marshall,  9  Ex.  294. 

750  Backus  v.  Richardson,  5  Johns.  476;  and  the  like  charge  against  a  black- 
smith held  actionable.  JBurlchv.  Niekerson,  17  Johns.  217  ;  and  see  Crawfvot  v. 
Bale,  Vent.  263 ;  and  Viner's  Abr.  Act.  for  Words,  U.  a.  22. 

761  Rathbun  v.  Emigh,  6  Wend.  407.  Where  the  defendant  said  of  the  plaintiff, 
a  mercer,  "  lie  hath  deceived  in  a  reckoning,  and  his  debt-book  which  he  keepeth 
is  a  false  debt-book,"  judgment  went  against  the  plaintiff,  because  the  book  might 
be  kept  by  the  defendant's  servant,  and  he,  defendant,  not  have  knowledge  of  it. 
(Brook's  Case,  Godb.  231.)  In  Backus  v.  Richardson  (5  Johns.  476),  the  court  said 
the  words  "  You  keep  false  books  "  implied  knowledge  in  plaintiff;  and  in  Todd 
v.  Hastings  (Vent.  117),  it  was  held  that  to  charge  a  trader  with  keeping  "false 
books"  would  be  construed  to  mean  "false  debt  books."  Keeping  books  of  account 
is  necessary  in  this  country  where  credit  is  generally  given,  as  well  by  the  me- 
chanic as  by  the  merchant  and  professional  man.  (Burtch  v.  Niekerson,  17  Johns. 
217.)  Mechanics  "generally  sell  on  credit,  and  their  success  and  reputation 
depend  upon  their  character  for  fair  dealing."     {Rathbun  v.  Emigh,   6  Wend. 


WHAT  LANGUAGE   IS   ACTIONABLE.  205 

§  189.  One  of  the  essential  elements  of  the  actionable 
quality  of  language  concerning  one  in  his  occupation  or  office, 
is  the  fact  that  the  person  whom  the  language  concerns  is  in 
such  occupation  or  office  (§  181) ;  it  necessarily  follows  that  to 
render  language  concerning  one  in  his  occupation  or  office  ac- 
tionable per  se,  the  person  whom  the  language  concerns  must 
follow  such  occupation  or  hold  such  office  at  the  time  the  lan- 
guage is  published.  No  language  concerning  one  in  any  special 
character,  published  after  he  has  ceased  to  occupy  that  charac- 
ter, can  be  actionable  as  concerning  him  in  such  special  charac- 
ter. The  general  rule  is  that  in  an  action  for  language  concerning 
one  in  a  special  character,  it  must  be  shown  that  he  maintained 
that  special  character  at  the  time  the  language  was  published.752 
Where  the  plaintiff  had  been  commissioner  to  make  a  treaty 
with  the  Indians,  and  after  his  commission  had  terminated  the 
defendant  charged  him  orally  with  hiring  and  bribing  the  In- 
dians to  sign  such  treaty,  held  that  no  action  could  be  main- 
tained.'153 Where  plaintiff  was  twice  constable,  once  in  1843 
and  again  in  1846,  and  during  the  latter  period  one  said  of  him 
orally  that  while  constable  in  1813  he  had  made  a  false  return, 
held  that  the  words  would  not  support  an  action.754  If  a  man 
has  been  a  merchant  and  leaves  off  merchandising  for  a  time, 
and  another  calls  him  bankrupt,  an  action  lies ;  for  though  he 
does  not  use  the  trade  of  a  merchant  at  the  time  of  the  speak- 
ing the  words,  yet  he  remains  a  mercha?it,  and  may  resume  the 
trade  at  his  pleasure  ;755  but  where  the  plaintiff  alleged  he  had 

407.)  Another  reason  why  a  charge  of  keeping  false  books  of  account  was  held 
actionable  was,  that  such  books,  if  generally  reputed  correct,  were  receivable  as 
evidence  of  their  contents.    {Crawfoot  v.  Dale,  Vent.  263.) 

762  Smaylcs  v.  Smith,  Browl.  1;  Reiynald's  Case,  Cro.  Car.  563;  Bellamy  v. 
Burch,  16  M.  &  W.  590  ;  8  Law  Times,  413  ;  Allcnv.  Hillman,  12  Pick.  101 ;  For- 
ward v.  Adams,  1  Wend.  204  ;  Oram  v.  Franklin,  5  Blackf.  42  ;  Harris  v.  Bailey, 
8  N.  Hamp.  216. 

163  Forward  v.  Adams,  f  Wend.  204. 

764  Edwards  v.  Noivel!,  10  Ired.  211 ;  but  it  was  said  plaintiff  might  have  re- 
covered on  proof  of  special  damage. 

7"  Gardner  v.  Hopwood,  Yelv.  159;  and  see  Vin.  Abr.  Act.  for  Words,  IT.  a. 
19.  An  attorney  who  has  not  taken  out  his  annual  certificate,  although  he  is  by 
statute  disabled  from  recovering  his  fees,  nevertheless  continues  an  attorney,  and 


206  WHAT  LANGUAGE   IS  ACTIONABLE. 

for  many  years  used  the  trade  of  a  drover,  but  without  alleging 
he  was  a  drover  at  the  time  of  the  publication,  it  was  held  he 
did  not  show  a  cause  of  action.756  Whether  or  not  the  plaintiff 
occupied  the  special  character  alleged,  and  whether  or  not  he 
continued  in  such  special  character  until  the  time  of  the  publi- 
cation complained  against,  are  questions  of  fact.  A  person 
shown  once  to  have  been  in  any  certain  office,  profession,  or 
trade,  is  presumed  to  continue  therein.757  The  decisions  which 
are  sometimes  referred  to  as  exceptions  to  the  rule  that  the  per- 
son whom  the  language  concerns  must  maintain  his  special 
character  at  the  time  the  language  is  published,  are  really  not 
exceptions  to  that  rule,  they  are  cases  which  follow  another 
and  different  rule  because  comprehended  in  a  different  class. 
On  examination  they  will  be  found  to  range  themselves  under 
the  division  relating  to  language  concerning  an  individual  as 
such ;  and  the  true  ground  on  which  in  such  cases  the  actions 
were  sustained* was  of  the  language  being  actionable  as  affect- 
ing the  individual  as  such,  without  regard  to  his  having  occu- 
pied the  special  character  to  which  the  language  refers.  Thus 
where  one  had  been  senator,  and  after  his  term  of  office  had 
ceased  it  was  published  of  him  in  writing  that  he  had  been 
guilty  of  corrupt  conduct  in  his  office  of  senator,  the  action 
was  sustained ; 758  and  so  where  one  had  been  constable,  and 
after  he  emitted  that  office  it  was  said  of  him  that  while  in 
office  he  was  a  healer  of  felons,  or  of  one  that  when  in  office 
as  a  justice  he  was  a  bribing  justice.759 

may  maintain  an  action  for  language  concerning  him  as  an  attorney.  (Jones  v. 
Stevens,  11  Trice,  235;  Pearce  v.  Whale,  5  B.  &  C.  38.) 

750  Collis  v.  Ma/in,  Cro.  Car.  282 ;   Gray  v.  Medcalfe,  Yelv.  21. 

757  Tuthill  v.  Milton,  Yelv.  158;  Collis  v.  Malin,  Cro.  Car.  282  ;  Jordan  y.  Lys- 
ter,  Cro.  Eliz.  273  ;  Moore  v.  Syme,  2  Rolle  R.  84;  Bod  v.  Robinson,  All.  63  ;  For- 
ward y.  Adams,  7  Wend.  204;  Bellamy  v.  Burch,  16  M.  <fe  W.  590;  Fry  v.  Ben- 
nett, 28  N.  Y.  324 ;  but  see  M'Leod  v.  Murphy,  3  Car.  &  P.  311. 

758  Cramer  v.  Biggs,  17  Wend.  209  ;  and  see  7  Wend.  204;  Littlejohn  v.  Greely, 
13  Abb.  Pra.  R.  41 ;    Waldcn  v.  Mitchell,  2  Vent.  206. 

759  priciham  y.  Tucker,  Yelv.  153.  To  say  of  a  commissioner  appointed  to  take 
testimony,  he  hath  taken  bribes  (Moor  v.  Foster,  Cro.  Jac.  65),  and  charging  an 
officer  of  a  court  of  record  with  taking  bribes,  held  actionable.  (Anon.  Dal.  43; 
Lee  v.  Swan,  Yelv.  142.) 


WHAT  LANGUAGE  IS   ACTIONABLE.  207 

§  190.  To  render  language  concerning  one  in  a  special 
character  or  relation  actionable,  "  it  must  touch  him  "  in  that 
special  character  or  relation  ;  for  unless  it  does,  it  must  be 
judged  in  regard  to  its  actionable  quality  by  the  rules  which 
apply  to  language  concerning  an  individual  as  such.  That  the 
language  "  must  touch  "  the  person  whom  it  concerns  in  his 
special  character,  means  only  that  it  must  concern  him  in  such 
special  character,  and  affect  him  therein.  It  is  not  sufficient 
that  the  language  disparages  him  generally,  or  that  his  general 
reputation  is  thereby  affected ;  it  must  be  such  as  if  true  would 
disqualify  him  or  render  him  less  tit  proper]y  to  fulfill  the 
duties  incident  to  the  special  character  he  has  assumed.  It  is 
not  enough  that  the  language  "  tends  to  injure  the  person  in 
his  office,  profession,  or  trade,  it  must  be  spoken  [published]  of 
him  in  his  official  or  business  character." 760  It  must  "  touch 
him  in  his  office,  profession,  or  trade." 761  Thus,  saying  of  a 
justice  of  the  peace  "  there  is  a  combined  company  here  to 
cheat  strangers,  and  Squire  Van  Tassel  has  a  hand  in  it. — I 
don't  see  why  he  did  not  tell  me  the  execution  had  not  been 
returned  in  time,  so  that  I  could  sue  the  constable;"762  or, 

760  Van  Tassel  v.  Capron,  1  Denio,  250 ;  Sibley  v.  Tompkins,  4  Tyrw.  90 ;  Boy- 
ley  v.  Roberts,  3  Bing.  N.  S.  835  ;  Ridway  v.  Gray,  31  Verm.  (2  Shaw)  292 ;  Buck 
v.  Hersey,  31  Maine  (1  Red.)  558.  It  seems,  however,  that  where  one  is  in  busi- 
ness, words  spoken  of  him  in  his  private  character  will  bear  an  action,  if  they 
are  such  as  must  necessarily  affect  him  in  his  business  ;  thus,  to  say  of  a  brewer, 
he  had  been  locked  up  in  a  sponging-house  [a  private  jail,  kept  by  deputy-sheriffs 
where  persons  arrested  for  debt,  on  paying  for  the  indulgence,  have  the  option  of 
remaining  instead  of  going  to  the  debtor's  prison],  was  held  actionable,  because 
the  words  were  held  necessarily  to  affect  his  credit  as  a  trader.  {Jones  v.  Littler, 
7  M.  &  W.  423.)  And  see  Bell  v.  Thatcher,  Freem.  277 ;  Fowles  v.  Bowen,  30  N. 
Y.  23;  Starr  v.  Gardner,  6  Up.  Can.  Q.  B.  R.  (O.  S.)  512.  So  in  Davis  v.  Ruff, 
Cheves,  17,  it  is  said  that  words  affecting  the  pecuniary  credit  of  a  merchant 
need  not  be  averred  nor  proved  to  have  been  used  in  relation  to  his  occupation 
as  a  merchant,  for  in  their  nature  they  strike  at  the  root  of  mercantile  char- 
acter. 

761  Kinney  v.  Nash,  3  Coins.  177;  Van  Tassel  v.  Capron,  1  Denio,  250; 
Comyn's  Dig.  Act.  for  Defam.  D.  27.  Whether  words  were  spoken  of  a  man  in  a 
certain  capacity,  is  a  question  of  fact  for  the  jury.  (Skinner  v.  Grant,  12  Verm. 
456 ;  Sibley  v.  Tomlins,  4  Tyrw.  90  ;  Doyley  v.  Roberts,  3  Bing.  N.  S.  835 ;  Tom- 
linson  v.  Brittlebank,  1  liar.  &  W.  573.) 

76:1  Van  Tassel  v.  Capron,  1  Denio,  250. 


208  WHAT   LANGUAGE   IS   ACTIONABLE. 

"  Squire  Oakley  is  a  damned  rogue,"763  was  held  to  impute  mis- 
conduct as  a  man  and  not  as  a  magistrate,  and  not  to  be  action- 
able. For  a  like  reason  it  was  held  not  actionable  to  say  of  one 
who  kept  a  public  garden,  "  lie  is  a  desperate  man,  a  danger- 
ous man.  I  am  afraid  to  go  to  his  house  alone ;  I  am  afraid  of 
my  life  ;  "764  and  these  words  of  a  pork  butcher,  "  Who  stole  F.'s 
pigs?  You  did,  you  thief ;  you  poisoned  them  with  mustard 
and  brimstone,"  were,  after  verdict,  held  not  to  have  any  nec- 
essary connection  with  his  trade,  and  were  not  calculated  to 
injure  him  in  it,  and  therefore  not  actionable.765  The  words, 
"  He  has  defrauded  his  creditors,  and  been  horse-whipped  off 
the  course  at  D.,"  spoken  of  an  attorney  but  not  in  his  charac- 
ter of  an  attorney,  held  not  actionable.766  And  the  same  de- 
cision was  made  in  reference  to  these  words  spoken  of  an  attor- 
ney :  "  I  have  taken  out  a  judge's  order  to  tax  A.'s  bill.  I 
will  bring  him  to  book,  and  have  him  struck  off  the  roll.767  I 
will  take  him  to  Bow  Street  on  a  charge  of  forgery." 768  And 
saying  of  a  livery-stable  keeper,  "  You  are  a  regular  prover 
under  bankruptcy  ;  you  are  a  regular  bankrupt  maker  ;  if  it 
was  not  for  some  of  your  neighbors  your  shop  would  look 
queer,"  was  held  not  to  be  a  charge  in  the  way  of  his  trade  nor 
actionable.769  Where  words  imputing  incontinency  and  not  in 
themselves  actionable  were  spoken  of  one  in  respect  of  his  sit- 
uation as  clerk  in  a  gas  company,  held  that  not  imputing  any 
misconduct  in  his  capacity  of  clerk,  they  were  not  actionable.770 
A  charge  against  the  plaintiff,   laid  to  be  spoken  of  him  in  his 

763  Oakley  v.  Farrington,  1  Johns.  Cas.  129  ;  and  held  not  actionable  to  say  of 
a  justice:  "He  is  a  logger-headed,  a  slouch-headed,  and  a  bursen-bellied  hound." 
(1  Keb.  629.)  Calling  one  who  is  a  cooper  varlet  and  knave  is  not  actionable — 
the  words  do  not  touch  him  in  his  trade.     (Coles  v.  Kettle,  Cro.  Jac.  204.) 

764  Ireland  v.  McGarvish,  1  Sandf.  155. 
766  Sibley  v.  Tomlins,  4  Tyrw.  90. 

766  Doyley  v.  Roberts,  3  Bing.  N.  S.  835. 

767  Philips  v.  Jansen,  2  Esp.  Cas.  024. 

708  Harrison  v.  King,  4  Price,  46  ;  1  Taunt.  431. 

769  Alexander  v.  Angle,  1  Cr.  &  J.  143  ;  4  Tyrw.  9. 

770  Lumby  v.  Allday,  1  Cr.  <fe  J.  301 ;  1  Tyrw.  21V.  The  words  were,  "You 
are  a  fellow,  a  disgrace  to  the  town,  unfit  to  hold  your  situation  for  your  conduct 
with  whores." 


WHAT   LANGUAGE    IS    ACTIONABLE.  209 

trade  of  a  staymaker,  of  criminal  intercourse  with  a  female 
employed  by  him  in  his  trade,  held  not  to  affect  him  in  his 
trade  and  not  actionable.771  And  so  it  was  held  that  a  charge 
of  adultery  against  a  physician  did  not  necessarily  touch  him 
in  his  profession,  and  was  not  actionable  without  its  being 
shown  that  the  charge  was  connected  with  the  plaintiff's  pro- 
fession ; Trt  and  the  same  was  held  of  these  words  of  a  physi- 
cian :  "  He  is  so  steady  drunk  he  cannot  get  business  any 
more  ;  " 773  or,  he  is  a  two-penny  bleeder  ; 774  or,  he  gave  my 
child  too  much  mercury  ;  or,  he  made  up  the  medicines  wrong 
through  jealousy,  because  I  would  not  allow  him  to  use  his  own 
judgment.775  Saying  of  a  woman  who  gained  her  livelihood  by 
teaching  girls  to  dance,  "  She  is  as  much  a  man  as  I  am ;  she 
got  I.  S.  with  child ;  she  is  an  hermaphrodite,"  was  held  not 
actionable,  no  special  damage  being  properly  alleged,  and  because 
girls  are  taught  to  dance  as  frequently  by  men  as  by  women.776 
It  was  held  actionable  to  call  a  school-mistress  a  dirty  slut ; 777 
or  to  charge,  by  writing,  a  school-teacher  with  making  a  false 
report  to  the  school  visitors  and  wTith  general  untruthfulness,778 
or  with  want  of  chastity.779  It  was  held  actionable  to  say  of  a 
shop-keeper,  he  had  nothing  but  rotten  goods  in  his  shop  ; 780  or 
to  charge  in  writing  that  the  place  of  business  of  a  trader  (a  coach- 
builder)  was  not  respectable  ; 781  or,  that  a  ship  of  which  the 


771  Brayne  v.  Cooper,  5  M.  &  W.  249. 

772  Ayre  v.  Graven,  2  A'dol.  &  El.  2 ;  4  Nev.  &  M.  220.  In  Barrett  v.  Carpen- 
ter, Noy,  64,  it  was  held  not  actionable  per  se  to  charge  a  clergyman  with  adul- 
tery ;  but  that  case,  it  was  said  in  Galwey  v.  Marshall,  9  Ex.  294,  has  been  over- 
ruled ;  and  saying  of  a  clergyman  that  he  had  two  wives  was  held  actionable. 
{Nicholson  v.  Lyues,  Cro.  Eliz.  94.)     See  note  886,  post. 

773  Anon.  1  Ham.  83,  note. 

7'"  Foster  v.  Small,  '■'.  Whart.  138. 
^Edsalt  v.  Russell,  4  M.  &  G.  1090. 

770  Weatlierhead  v.  Armitaye,  2  Levinz,  233.     In   Malone  v.  Stewart,   15  Ohio, 
319,  it  was  held  actionable  to  call  a  married  woman  an  hermaphrodite. 
777  Wilson  v.  Runyon,  Wright,  651. 
77b  Lindley  v.  Horton,  27  Conn.  58. 
77a  Bodwell  v.  Osgood,  3  Pick.  379. 
7B0  Bennett  v.  Wells,  12  Mod.  420. 

n  Barrettv.  Bony,  3  Ho.  Lords  Cas.  395;   16  Eng.  Law  A-  Eq.  It.  1. 
1  I    ■ 


210  WHAT   LANGUAGE   IS    ACTIONABLE. 

plaintiff  was  owner  and  master,  and  which  he  had  advertised 
for  a  voyage  to  the  East  Indies,  was  not  seaworthy,  and  that 
Jews  had  bought  her  to  take  out  convicts.782 

§  191.  In  those  trades  or  professions  in  which  ordinarily 
credit  is  essential  to  their  successful  prosecution,  there  language 
is  actionable^/1  se  which  imputes  to  one  in  any  such  trade  or 
profession,  a  want  of  credit  or  responsibility  or  insolvency,  past, 
present,  or  future ; 788  as,  to  say  of  a  tradesman,  He  is  not  able 
to  pay  his  debts;  or,  He  owes  more  than  he  is  worth;784  he 
will  break  shortly.785  He  is  a  pitiful  fellow  and  a  rogue ;  he 
compounded  his  debts  at  5s.  in  the  pound.786  He  is  indebted 
to  me,  and  if  he  does  not  come  and  make  terms  with  me  I  will 
make  a  bankrupt  of  him  and  ruin  him.787  He  is  a  bank- 
rupt.788    He  was  a  bankrupt.789     He  is  a  bankrupt,  and  unable 

782  Ingram  v.  Lawson,  6  Bittg.  N.  C.  212.  The  words  were  held  to  be  more 
than  a  libel  on  the  ship,  and  to  constitute  a  libel  on  the  plaintiff  in  his  trade,  for 
which  he  might  recover  without  proof  of  malice  or  special  damage. 

783  Seycroftv.  Bunker,  Cro.  Car.  317  ;  Harrison  v.  Thornborough,  10  Mod.  11; 
Southamy.  Allen,  T.  Raym.  231;  Sewally.  Catlin,  3  Wend.  291;  Read  v.  Hud- 
son, 1  L'd  Raym.  610;  Ostrom  v.  Calkins,  5  Wend.  263;  Davis  y.  Lewis,  7  T.  R. 
17;  Dobson  v.  Tkomisione,  3  Mod.  112;  Chapman  v.  Lamphire,  3  Mod.  loo; 
Mott  y.  Comstock,  7  Cow.  654;  Whitaker  v.  Bradley,  7  D.  &  R.  649;  S.  C,  Whit- 
tington  v.  Gladwin,  5  B.  &  C.  180;  2  C.  &  P.  146;  Lewis  y.  Hawley,  2  Day,  495; 
Anon.,  Lofft,  322;  Hull  y.  Smith,  1  M.  <fe  S.  287;  Else  v.  Ferris,  Anthon,  23; 
Brown  v.  Smith,  20  Eng.  L.  &  Eq.  R.  243;  13  C.  B.  596;  22  Law  Jour.  R.  N.  S. 
C.  P.  151 ;  17  Jur.  807;  1  Com.  Law  Rep.  49;  Jones  v.  Littler,  7  M.  <fe  W.  423  ; 
Carpenter  v.  Dennis,  3  Sand.  305;  Phillips  v.  Hoeffer,  1  Penn.  St.  Rep.  62;  Pret- 
tyman  v.  Shockley,  4  Harring.  112;   Griffiths  v.  Lewis,  15  Law  Jour.  249,  Q.  B. 

784  Vin.  Abr.  Act.  for  Words,  U.  a.  11,  12,  13,  20,  21,  and  to  publish  in  writing 
concerning  one  engaged  in  a  business  in  which  credit  was  essential,  "  Had  to  hold 
over  a  few  days  for  the  accommodation  of  L.  (plaintiff)."  Lewis  v.  Chapman,  19 
Barb.  252;  S.  C.  16  N.  Y.  369. 

785  Hill's  case,  Lat.  114;  Dobson  v.  Thornistone,  3  Mod.  112. 

786  Spoken  of  a  pawnbroker,  and  special  damage  alleged.  Stanton  v.  Smith, 
2  L'd  Raym.  1480.  This  case  was  questioned  3  Bing.  N.  C.  840,  but  sustained 
Jones  y.  Littler,  7  M.  <fe  W.  423. 

787  Brown  v.  Smith,  13  C.  B.  596 ;  1  Com.  Law  Rep.  49 ;  22  Law  Jour.  Rep.  N. 
S.  C.  P.  151;  20  Eng.  Law  &  Eq.  R.  243. 

788  Spoken  of  a  grazier.  (Anon.,  1  Bulst.  40.)  Of  a  dyer.  (Squire  y.  Johns, 
Cro.  Jac.  558.)  Of  a  shoemaker,  who  bought  and  sold  leather.  (Stanley  y.  Os- 
baston,  Cro.  Eliz.  268 ;  and  see  Vin.  Abr.  Act.  for  Words,  U.  a.  18,  19,  35,  36,  38, 

I.  «.) 

■89  Hu>   y.  Smith,  1  M.  <fc  S.  287. 


WHAT   LANGUAGE   IS   ACTIONABLE.  211 

to  pay  his  just  debts.790  The  sheriff  will  sell  him  out  one  of 
these  days,  and  claims  against  him  not  sued  will  be  lost.791  He 
must  fail ;  his  time  is  come.792  He  is  not  worth  a  penny  and 
will  run  away.793  He  will  be  a  bankrupt.794  He  is  next  door 
to  breaking.795  He  is  broken  and  run  away,  and  will  never  re- 
turn.796 I  heard  he  was  run  away.797  I  have  heard  of  no  fail- 
ures, but  understand  there  is  trouble  with  S.798  Two  dyers  are 
gone  off,  and  for  aught  I  know  H.  will  be  so  too,  within  this 
time  twelve  months.799  H.  will  lose  his  debt ;  M.  (plaintiff)  is 
unable  to  pay  it.800     He  came  a  broken  merchant  from  Ham- 

790  Spoken  of  a  drover,  whose  business  was  to  purchase  droves  of  cattle  and 
drive  them  to  market  and  sell  them.  {Lewis  v.  Hawley,  2  Day,  495.)  An  inn- 
keeper is  a  trader.  (Ombony  v.  Jones,  19  N.  Y.  241.)  The  words,  "You  have 
been  a  pauper  ever  since  you  have  lived  in  the  parish ;  you  are  now  a  pauper. 
I  have  paid  £20  a  year  towards  your  maintenance;  you  will  be  in  the  bankrupt 
list  in  less  than  twelve  months,"  spoken  of  an  innkeeper,  held  actionable. 
(Whittington  v.  Gladwin,  5  B.  &  C.  180;  2  Car.  &  P.  146;  S.  C,  Whitaker  v. 
Bradley,  7  D.  <k  R.  649.)  So  it  is  actionable  to  say  of  an  innkeeper,  He  is  broke, 
and  there  is  neither  entertainment  for  man  or  horse.  (Southam  v.  Allen,  T. 
Raym.  231.) 

791  Spoken  of  a  farmer.     (Phillips  v.  Hoeffer,  1  Penn.  St.  Rep.  62.) 

792  Spoken  of  a  distiller,  the  course  of  whose  business  was  to  purchase  grain 
on  credit.     (Ostrom  v.  Calkins,  5  Wend.  263.) 

793  Anon.,  Lofft,  322.  He  is  about  to  run  away  and  defraud  his  creditors. 
(Prettyman  v.  Shockley,  4  Harring.  112.) 

794  In  three  days.  (Thompson  v.  Twenge,  2  Rolle  R.  433.)  Or  in  six  months. 
(Else  v.  Ferris,  Anthon  N.  P.  23.)  He  will  be  bankrupt,  without  saying  when, 
said  not  to  be  actionable.     Vin.  Abr.  Act.  for  Words,  O.  a. 

796  Spoken  of  a  laceman  [a  dealer  in  lace].  (Read  v.  Hudson,  1  L'd  Raym. 
610.) 

796  Spoken  of  a  carpenter.  (Chapman  v.  Lamphire,  3  Mod.  155.)  And  spoken 
of  a  farmer.  (Dobson  v.  Thornistone,  3  Mod.  112.)  To  say  of  a  merchant,  he  is 
broke,  is  actionable.     (Leycroft  v.  Dunkin,  Cro.  Car.  31.) 

797  Spoken  of  a  tailor.  (Davis  v.  Lewis,  7  Term  R.  17.)  Spoken  of  a  carpen- 
ter.    (3  Mod.  312.) 

79b  Spoken  of  a  merchant.  (Sewell  v.  Catlin,  3  Wend.  291.)  To  say  of  a 
banker,  he  suspended  payment,  is  actionable.  Dictum  in  Forster  v.  Lawson,  3 
Bing.  452. 

799  Harrison  v.  Thomborough,  10  Mod.  11. 

800  Spoken  of  a  merchant.  (Molt  v.  Comstock,  7  Cow.  654.)  It  was  held  not 
actionable  to  say  to  a  creditor  of  a  merchant  (the  plaintiff ),  You  were  best  to 
call  for  it  [your  money]  in,  and  take  heed  how  you  trust  him.  (Vin.  Abr.  Act. 
for  Words,  U.  a.  17.) 


212  WHAT   LANGUAGE   IS   ACTIONABLE. 

burgh.801  All  is  not  well  with  V. ;  there  are  many  merchants 
who  have  lately  tailed,  and  I  expect  no  otherwise  of  V.802  There 
is  no  bottom  to  you.  I  would  put  you  through,  but  you  won't 
stand  ;  you  will  burst  or  fail  before  I  have  a  chance.803  Thou 
art  a  beggarly  fellow,  and  not  worth  a  groat.804  They  have 
been  sued  ;  report  says  J.  B.'s  wife  (J.  B.  being  one  of  the  plain- 
tiffs) is  about  to  apply  for  a  divorce,  and  that  J.  B.  has  put  his 
property  out  of  his  hands ;  if  so,  their  store  will  be  closed 
soon.805 

§  192.  Language  of  one  in  his  trade  or  profession  is  action- 
able j?er  se  when  it  imputes  to  him  fraud,  want  of  integrity,  or 
misconduct  in  the  line  of  the  business  or  profession  "  whereby 
he  gains  his  bread."806  Thus  it  was  held  actionable  to  say  of  a 
weaver,  He  is  a  rogue  and  villain,  and  taketh  the  goods  of  his 
customers  and  pawneth  them,  and  he  is  not  a  man  to  be 
trusted  ; 807  of  an  auctioneer  and  appraiser,  He  is  a  damned 
rascal,  and  has  cheated  me  out  of  £100  on  the  valuation ; m  of 
a  trader,  He  was  guilty  of  dishonestly  using  old  materials  in- 
stead of  new  in  doing  a  certain  piece  of  work  ; m  of  a  corn- 

B01  Seycroft  v.  Dunker,  Cro.  Car.  317. 

602  Vivian's  Case,  3  Salk.  326. 

808  Spoken  of  one  engaged  in  buying  and  selling  woodenware.  Carpenter  v. 
Dennis,  3  Sandf.  305. 

804  Simpson  v.  Barlow,  12  Mod.  591. 

606  Beardshy  v.  Tappan,  1  Blatch.  Cir.  C't  R.  588. 

806  Baboneau  v.  Farrell,  15  C.  B.  360;  Bryant  v.  Loxton,  11  Moore,  344;  Davis 
v.  Davis,  1  Nott  &  McCord,  290 ;  Chipman  v.  Cook,  2  Tyler,  456 ;  Bush  v.  Cave- 
naugh,  2  Barr,  187 ;  Brown  v.  Minis,  2  Rep.  Con.  C't,  235;  Foot  v.  Brown,  8 
Johns.  64 ;  Biggs  v.  Deniston,  3  Johns.  Cas.  198 ;  Thomas  v.  Jackson,  3  Bing.  104 ; 
10  Moore,  425;  Odiorne  v.  Bacon,  6  Cush.  185;  Gay  v.  Horner,  13  Pick.  535; 
Ludwellv.  Hole,  2  L'd  Rayni.  1417;  Davis  v.  Miller,  2  Strange,  1169;  Obaugh  v. 
Finn,  4  Pike,  110;  Boydell  v.  Jones,  4  M.  &  W.  446 ;  7  Dowl.  (P.  C.)  210;  Semp- 
sey  v.  Levy,  2  Jur.  776 ;  Vin.  Abr.  Act.  for  Words,  U.  a.  25,  26.  "  Any  charge  of 
dishonesty  against  an  individual  in  connection  with  his  business,  whereby  his 
character  in  such  business  may  be  injuriously  affected,  is  actionable."  (Fowles  v. 
Bowen,  30  N.  Y.  24.) 

807  Vin.  Abr.  Act.  for  Words,  U.  a.  4. 

808  Bryant  v.  Loxton,  11  Moore,  344. 

809  Baboneau  v.  Farrell,  1  Jur.  N.  S.  114;  15  C.  B.  360;  24  Law  Jour.  R.  X.  S 
9,  C.  P. ;  28  Eng.  Law  &  Eq.  R.  339. 


WHAT   LANGUAGE   IS   ACTIONABLE.  213 

factor,  You  are  a  rogue  and  a  swindling  rascal ;  you  delivered 
me  one  hundred  bushels  of  oats  worse  by  six  pence  a  bushel 
than  I  bargained  for ; 810  of  a  limeburner,  He  is  a  cheating 
knave ; 811  of  a  bailiff,  You  did  cozen  your  master  of  a  bushel 
of  barley,  or,  he  hath  deceived  his  master  by  buying  and  sell- 
ing ; 812  of  a  butcher,  That  he  used  false  weights ; 813  of  a  jew- 
eler, He  is  a  cozening  knave  in  selling  me  a  sapphire  for  a  dia- 
mond;814 of  a  goldsmith,  He  sold  me  a  chain  of  copper  for 
gold ;  of  one  who  sold  chamois  skins,  He  will  cozen  you  and 
sell  you  lamb  skins  instead  of  chamois  skins ;  of  a  brewer, 
that  he  makes  or  sells  unwholesome  beer ;  of  a  tradesman, 
that  he  adulterates  the  article  in  which  he  deals  ;  of  one  who 
took  children  to  board,  that  he  starved  a  child  entrusted  to  his 
care.813  And  actionable  to  charge  the  agent  of  a  stage  com- 
pany, that  he  (plaintiff)  and  B.,  his  sub-agent,  had  altered  way- 
bills and  books  to  screen  the  plaintiff  (innuendo  charging  for- 
gery), and  that  plaintiff  and  B.  were  together  to  cheat  the  com- 
pany, and  they  would  cheat  them  out  of  more  than  the  company 
can  make.816  Actionable  to  charge  by  writing  a  steamboat 
agent  with  being  an  impertinent  person  and  withholding  news- 
papers intrusted  to  him  for  the  defendants.817     And  it  was  held 


ta0  Thomas  v.  Jackson,  3  Bing.  104  ;  10  Moore,  425 ;  and  to  charge  a  merchant 
with  being  a  swindler  is  actionable.     (Herr  v.  Bamburg,  10  How.  Pra.  R.  128.) 

mi  ferry  v.  Hooper,  Raym.  87;  Lev.  115. 

BM  Vin.  Abr.  Act.  for  Words,  U.  a,  5,  and  note  464,  ante. 

"13  Griffiths  v.  Lewis,  15  Law  Jour.  249,  Q.  B. ;  and  see  Prior  v.  Wilson,' 1  C.  B. 
N.  S.  95.  The  way  in  which  Messrs.  P.  (the  plaintiffs)  do  things  at  Guilford — 
inserting  the  wedge — innuendo  inserting  a  wedge  to  falsify  the  weight. 

BM  Vin.  Abr.  Act.  for  Words,  I.  a.  9,  and  several  cases  there  referred  to. 

■"  Vin.  Abr.  Act.  for  Words,  U.  a.  21,  30,  28,  31,  29;  Freem.  25.  Charging  a 
brewer  with  filthy  and  disgusting  practices  in  preparing  his  malt,  is  actionable. 
( White  v.  Delavan,  \1  Wend.  49;  Ryckman  v.  Delavan,  25  Wend.  186.)  See 
Woodr.  Brown,  1  Marsh.  522;  6  Taunt.  169.  In  that  case,  a  declaration  which 
alleged  that  defendant  published  of  plaintiff,  a  brewer,  that  his  beer  was  of  a  bad 
quality  and  deficient  in  measure,  was  held  bad  on  general  demurrer. 

*JS  Gay  v.  Homer,  13  Pick.  535. 

"17  Kecmle  v.  Sass,  12  Mis.  499.  The  language  being  published  in  writing 
m&u  actionable  as  concerning  the  plaintiff  as  an  individual  merely. 


214  WHAT   LANGUAGE   IS   ACTIONABLE. 

actionable  to  publish  orally  of  a  land  surveyor,  who  sur- 
veyed by  mathematics,  as  distinguished  from  one  who  measured 
with  a  pole,  He  is  a  cozening  and  shifting  and  a  cheating  knave ; 
and  it  was  said  that  the  same  words  of  a  shoemaker,  a  butcher, 
or  a  baker  would  not  be  actionable,  because  the  goodness  or 
deceit  of  their  wares  may  be  discerned  by  the  eye,  but  deceit 
in  land  measuring  could  be  discovered  only  by  persons  skilled 
in  the  art  ;818  but  not  actionable  to  say  of  a  workman,  He  has 
received  forty  days'  wages  for  work  that  might  have  been  done 
in  ten  days,  and  is  a  rogue  for  his  pains;819  nor  to  say  of  a 
smith,  Thou  art  a  cozening  rogue,  and  in  one  tire  of  wheels 
which  thou  didst  send  to  J.  S.  thou  didst  cozen  him  of  a  noble ; 
for  the  words  import  he  cozened  in  the  price  only,  and  not  in 
the  ill  making  of  the  wheels.  And  for  saying  of  men  in  trade 
who  sell  things  that  they  cozen  in  the  price,  is  no  disgrace,  for 
every  trader  cozens  in  the  price  when  he  sells  for  more  than  the 
thing  is  worth.820  Actionable  to  publish  orally  of  a  merchant's 
clerk,  That  he  (plaintiff)  had  become  such  a  notorious  liar  that 
he  (defendant)  could  place  no  confidence  in  him ;  that  he  had 
strong  reason  to  doubt  his  honesty,  and  had  written  S.  to  em- 
ploy an  officer  to  watch  him.821  And  the  following  words 
spoken  of  the  plaintiff  as  clerk  of  the  firm  of  defendant  and  his 
partner,  "  Your  man  (plaintiff)  is  plotting  to  blow  me  (defend- 
ant) and  the  concern  (said  firm)  up,"  were  held  actionable.822  So 
it  has  been  held  actionable  to  publish  orally  of  an  attorney,  He 
is  a  forging  rogue,823  a  cheat,824  a  damned  rascal  j885  he  will  play 

618  Blunden  v.  Eustace,  Cro.  Jac.  5t.t4 ;   London  v.  Eastgate,  2  Rolle  R.  72. 

819  Lancaster  v.  French,  2  Stra.  797. 

620  Vin.  Abr.  Act.  for  Words,  S.  a.  24.  Thou  didst  cozen  a  woman  of  her  goods, 
held  not  actionable.  {Engvrst  v.  Browne,  Cro.  Eliz.  99.)  And  held  not  actiona- 
able  to  say  of  an  innkeeper,  He  is  a  caterpillar  and  lives  by  robbing  his  guests. 
Robbing  not  construed  feloniously.     Vin.  Abr.  Act.  for  Words,  IT.  a.  34. 

H21  Fowles  v.  Bowen,  30  N.  Y.  20 ;  and  see  Brown  v.  Orvis,  6  How.  Pra.  R.  378. 
Where  the  words  affect  one  as  merchant's  clerk,  special  damage  need  not  be  al- 
leged.    Butler  v.  Howes,  7  Cal.  87. 

BM  Ware  v.  Clowney,  24  Ala.  707. 

BM  Anon.,  1  Comyn  R.  262. 

"24  Rush  v.  Cavanaugh,  2  Barr,  i  -7. 

B26  Brown  v.  Mims,  2  Rep.  Con.  I  "t.  236. 


WHAT   LANGUAGE    IS   ACTIONABLE.  215 

on  both  sides  or  be  deals  on  both  sides,826  a  bribing  knave,  and 
has  taken  twenty  pounds  of  you  to  cozen  me ; m  he  is  not  a 
man  of  integrity,  and  is  not  to  be  trusted ;  he  will  take  a  fee 
on  both  sides  j828  he  is  a  cheater,  I  will  have  him  barred  of  his 
practice ; m  he  deserves  to  be  struck  off  the  roll  ;m  he  is  a  false 
knave,  a  cozening  knave,  and  has  gotten  all  that  he  has  by  coz- 
enage ;  he  has  cozened  all  those  that  have  dealt  with  him ;  he 
arresteth  without  taking  out  writs;  he  is  a  knave  in  his  prac- 
tice;831 he  offered  himself  as  a  witness  to  divulge  the  secrets  of 
his  clients ; m  he  is  a  rogue  for  taking  your  money,  and  has 
done  nothing  for  it ;  he  has  not  entered  an  appearance  for  you  ; 
he  is  no  attorney  at  law,  he  don't  care  to  appear  before  a 
judge ;  what  signifies  going  to  him,  he  is  only  an  attorney's 
clerk  and  a  rogue,  he  is  no  attorney.833  Is  M.  your  attor- 
ney ?  *  *  He  will  overthrow  your  cause.834  I  marvel  you 
will  employ  such  a  knave  as  Mcholls,  you  will  have  but  dis- 
grace by  it;  he  is  a  proclaimed  knave;835  he  is  the  falsest 
knave  in  England;836  he  is  a  base  rogue,  and  maintains  his 
family  by  his  knavery;837  he  is  an  extortioner,  and  cozened  A. 
in  a  bill  of  costs ; 8S&  he  keepeth  many  markets  and  stirreth  up 
men  to  suits,  and  promises  if  he  do  not  recover  in  their  cause 
he  will  take  no  charges,  and  he  once  promised  me  that  if  he 
did  not  recover  in  a  cause  he  would  take  no  charges  of  me,  yet 


b2S  Brown  v.  Hook,  Browl.  5 ;  Yin.  Abr.   Act.  for  Words,  S.  a.  2,  4 ;  Shire  v. 
King,  Yelv.  32;  S.  C.  King  v.  Shore,  Cro.  Eliz.  914. 
f27  Yardley  v.  Ellis,  Hobart,  8,  9 ;  1  Rolle  R.  53. 
m  Chipman  v.  Cook,  2  Tyler,  456. 
>-J  Taylor  v.  Btarkey,  Cro.  Car.  192. 

830  Dictum,  Phillips  v.  Jansen,  2  Esp.  0^4. 

831  Jenkins  v.  Smith,  Cro.  Jac.  586  ;  Bell  v.  TJtatcher,  Freeman,  277. 

832  Riggs  v.  Denniston,  3  Jobns.  Cas.  198. 

833  Hardwick  v.  Chandler,  2  Str.  1138. 

*34  Martyn  v.  Burling.*,  Cro.  Eliz.  589  ;  Golds.  128. 
835  Webb  v.  Nicholh,  Cro.  Car.  459. 
•"  Ahod.,  Mo.  61 ;  Dal.  63. 

837  Shaw  v.Wakcrnan,  Vin.  Abr.  Act.  for  Words,  S.  a.  2. 

838  Stanley  v.  Boswel,  Cro.  Eliz.  603. 


216  WHAT    LANGUAGE   IS   ACTIONABLE. 

he  afterwards  took  charges  of  me ; 839  he  deserves  to  have  his 
ears  nailed  to  the  pillory.840  Thou  art  a  paltry  fellow ;  thy 
credit  is  fallen,  for  thou  dealest  on  both  sides  and  dost  deceive 
many  that  trust  thee.841  He  suppressed  a  will ; m  he  is  a  coz- 
ener, and  hath  cozened  me  of  twenty  shillings  m  He  is  a  coz- 
ener, and  cozened  his  clients,  and  for  that  cause  was  discharged 
the  court.844  He  is  a  base,  cheating,  cozening  knave,  and  hath 
cheated  me  as  never  any  man  was  cheated.845  He  took  cor- 
ruptly five  marks  of  B.  T.,  being  against  his  own  client,  for 
putting  off  an  assize  against  him.846  Thou  art  a  common  bar- 
retor,  a  Judas,  a  promoter.847  He  sets  people  together  by  the 
ears,  and  we  shall  have  him  indicted  for  a  common  barretor.848 
You  are  a  knave ;  you  were  attorney  for  my  mother  against 
my  husband,  and  set  her  on  to  sue  him,  and  made  him  spend 
£1,000,  and  such  knaves  as  you  are  have  made  my  husband 
spend  almost  all  his  estate.849  And  actionable  to  say  of  a  coun- 
sellor, He  will  deceive  you ;  he  revealed  the  secrets  of  my 
cause.830  It  is  actionable  to  publish  in  writing  of  an  attorney 
employed  to  defend  a  prisoner,  that  on  the  trial  he  sent  import- 
ant witnesses  away  without  the  knowledge  of  his  client  or  of 
counsel;851  or  that  he  has  been  reprimanded  for  sharp  prac- 
tice.852 

839  Smith  v.  Andrews,  Sty.  183. 

840  Jenkinson  v.  Wray,  Mo.  4 1 . 

841  Shire  v.  King,  Yelv.  32;  S.  C,  King  v.  Shore,  Cro.  Eliz.  914. 

842  Godfrey  v.  Owen,  Palm.  21. 

843  hitman  v.  West,  Het.  123. 

844  Meadv.  Perkins,  Cro.  Car.  261. 

846  Jeffryes  v.  Payhem,  Cro.  Car.  510. 
MB  Smayles  v.  Smith,  Browl.  1. 

847  Taglor  v.  Star  key,  Cro.   Car.  192. 

848  Annison  v.  Blofield,  Carth.  848. 
848  Hilton  v.  Playters,  All.  13. 

860  Snag  v.  Grey,  Cro.  Eliz.  358. 

861  Sanford  v.  Bennett,  24  N.  Y.  20. 

862  Boydell  v.  Jones,  4  M.  &  W.  446.  Held  not  actionable  to  say  of  an  attor- 
ney, he  is  a  paltry  lawyer  {Rich  v.  Holt,  Cro.  Jac.  267);  but  actionable  to  say,  He 
is  a  pettyfogging,  blood-sucking  attorney.  {Armstrong  v.  Jordan,  Carlisle  As- 
sizes, 1826.) 


WHAT   LANGUAGE   IS   ACTIONABLE.  217 

§  193.  Language  of  one  in  a  business  or  profession  which 
imputes  to  him  ignorance  generally  in  his  business  or  profes- 
sion, or  such  ignorance  as  unfits  him  for  its  proper  exercise,  is 
actionable  ;m  as  to  say  of  a  physician  or  an  apothecary,  "  It  is 
a  world  of  blood  he  has  to  answer  for  in  this  town  through  his 
ignorance ;  he  did  kill  a  woman  and  two  children.  He  was  the 
death  of  J.  P.  ;  he  killed  his  patient  with  physic ; m  or,  Dr.  A. 
killed  my  children ;  he  gave  them  teaspoon  doses  of  calomel, 
and  it  killed  them.  .  .  .  They  died  right  off  the  same  day  j855 
or,  He  has  killed  the  child  by  giving  it  too  much  calomel ; m 
or,  He  has  killed  six  children  in  one  year  ; m  or,  He  is  a 
drunken  fool  and  an  ass,  he  never  was  a  scholar ; 858  or,  I  won- 
der you  had  him  to  attend  you ;  do  you  know  him  ?  He  is 
not  an  apothecary ;  he  has  not  passed  any  examination  ;  he  is 
a  bad  character,  none  of  the  medical  men  here  will  meet  him  ; 
several  have  died  that  he  has  attended,  and  there  have  been 
inquests  held  upon  them  ; m  or,  He  killed  my  child,  it  was  the 
saline  injection  that  did  it  ;860  or,  He  is  an  empirick  and  a  moun- 
tebank ;m  or  a  quack  j862  or,  He  is  a  quack,  and  if  he  shows  you 
a  diploma  it  is  a  forgery  ;863  or,  His  treatment  of  a  patient  was 
rascally  ;  ^  and  so  it  has  been  held  actionable  to  say  of  a  mid- 

e63  Jones  v.  Powell,  1  Mod.  272 ;  Proed  v.  Johnes,  Cro.  Car.  382 ;  Camp  v.  Mar- 
tin, 23  Conn.  86;  Day  v.  Buller,  3  Wils.  59;   Garr  v.  Selden,  6  Barb.  416. 

854  Tutty  v.  Alewiu,  11  Mod.  221,  and  see  note  448  ante. 

866  Secor  v.  Harris,  18  Barb.  425. 

"56  Johnson  v.  Robertson,  8  Porter,  486 ;  see  dictum  March  v.  Davison,  8  Paige, 
580.  To  charge  a  physician  with  having  killed  a  patient  with  physic,  held  not 
actionable.     (Poe  v.  Mcndford,  Cro.  Eliz.  620.) 

857  Carroll  v.  White,  33  Barb.  615. 

m  Cawdrey  v.  Tetley,  Godb.  441. 

*™  Southee  v.  Denny,  1  Ex.  196;  17  Law  Jour.  R.  151,  Ex.  Alleging  that  a 
physician  is  not  entitled  to  practice  as  not  being  duly  licensed,  may  be  actiona- 
ble.    See  Collins  v.  Carnerjie,  3  Nev.  &  M.  703 ;   1  Ad.  &  El.  695. 

860  The  words  impute  manslaughter.     (Edsall  v.  Russell,  4  M.  «fe  G.  1090.) 

M1  V'in.  Abr.  Act.  for  Words,  S.  a,  12.  Publishing  in  writing  of  a  barrister 
that  he  was  a  quack  lawyer  and  a  mountebank  and  an  im  poster,  is  actionable. 
(  Wakley  v.  Healey,  7  C.  J'».  591.) 

S6a  Pickfordv.  Gutch,  Dorchester  Assizes,  1787. 

861  Moises  v.  Thornton,  8  Term.  R,  303. 
""*  Camp  v.  Martin,  23  Conn.  86. 


218  WHAT   LANGUAGE   IS  ACTIONABLE. 

wife,  Many  have  perished  for  want  of  her  skill  [i.  e.  for  her 
want  of  skill].865  She  is  an  ignorant  woman,  and  of  small  prac- 
tice, and  very  unfortunate  in  her  way  ;  there  are  few  she  goes 
to  but  lie  desperately  ill,  or  die  under  her  hands.866  She  is  no 
midwife  but  a  nurse,  and  if  I  had  not  pulled  her  from  Mrs.  J. 
S.  she  had  killed  her  and  her  child.867  She  lays  no  woman,  but 
Dr.  Chamberlayn  or  his  lady  does  her  work.868  And  it  has 
been  held  actionable  to  say  of  a  schoolmaster,  Put  not  your 
son  to  him,  for  he  will  come  away  as  very  a  dunce  as  he  went.869 
He  has  no  knowledge  in  grammar  or  in  the  Latin  tongue,  nor 
knows  how  to  educate  his  scholars  in  the  Latin  tongue,  with  an 
allegation  of  loss  of  scholars.870  So  it  has  been  held  actionable 
to  say  of  an  attorney,  He  hath  no  more  law  than  Mr.  C.'s  bull, 
or  than  a  goose ; 871  he  cannot  read  a  declaration  ; 872  what,  does 
he  pretend  to  be  a  lawyer  ?  he  is  no  more  a  lawyer  than  the 
devil  ;873  or  of  a  barrister,  He  is  a  dunce,  and  will  get  little  by 
law,  he  was  never  but  accounted  a  dunce ; 874  or  of  a  shoemaker, 
that  he  is  a  cobbler ; 875  or  of  a  watchmaker,  that  he  knows 
not  how  to  make  a  good  watch.876 

§  194.  It  is  not  actionable  to  charge  one  in  a  business  or 
profession  with  want  of  skill  or  ignorance  in  a  particular  trans- 


866  Flower's  Case,  Cro.  Car.  211. 

866  Wharton  v.  Brook,  Vent.  21  ;    Wfiarton  v.  Clover,  2  Keb.  489. 
861   Whitehead  v.  Fownes,  Freem.  277. 
608  Gyles  v.  Bishop,  Freem.  278. 
869  Het.  71. 

810  London  v.  Eastyate,  2  Rolle  R.  72. 
B"  Baker  v.  Morfue,  Sid.  327. 

8,2  Powell  v.  Jones,  2  Keb.  710;  1  Mod.  272.  It  implies  ignorance,  not  a  de- 
fect of  sight. 

873  Day  v.  Buller,  3  Wils.  59. 

874  Proed  v.  Johnes,  Cro.  Car.  382. 

8,5  Vin.  Abr.  Act.  for  Words,  U.  «.  16. 

876  Redman  v.  Pyne,  1  Mod.  19  ;  but  to  say  of  a  watchmaker,  he  is  a  bungler, 
and  knows  not  how  to  make  a  good  piece  of  work,  would  be  actionable.  (Id.) 
Where  A.,  the  author  of  a  work,  sold  the  copyright  to  the  defendant,  who  after- 
wards published  a  new  edition  as  edited  by  A.,  containing  mistakes  and  errors, 
held,  if  this  was  calculated  to  injure  A.'s  reputation  as  an  author,  he  might  main- 
tain an  action.     (Archbo/d  v.  Sweet,  5  C.  &  P.  219;   1  M.  &  Rob.  162.) 


WHAT  LANGUAGE   IS   ACTIONABLE.  219 

action.877  Tims  it  was  held  not  to  be  actionable  to  say  of  an 
attorney  in  a  particular  suit,  "  He  knows  nothing  about  the 
suit;  he  will  lead  you  on  until  he  has  undone  you."878  It  is 
said,  however,  that  it  is  actionable  to  charge  ignorance  or  un- 
skilfulness  if  it  amounts  to  gross  ignorance  or  unskilfulness.879 
This  seems  only  another  mode  of  imputing  such  ignorance  as 
unfits  the  person  for  the  proper  exercise  of  his  art,  or  with 
misconduct  therein. 

§  195.  It  is  actionable  to  publish  orally  of  a  minister  of  the 
gospel :  that  he  preaches  lies  in  the  pulpit ; m  he  made  a  sedi- 
tious sermon,881  he  hath  two  wives,882  he  is  a  drunkard,883  or  in- 
continent,884 or  guilty  of  incest,885  or  he  has  a  bastard,886  or  he 
is  a  perjured  priest.887  The  following  words  were  held  not 
actionable,  spoken  of  one  who  was  a  minister  at  the  time  of  the 

877  Garr  v.  Selden,  6  Barb.  416;  Camp  v.  Martin,  23  Conn.  86;  Southee  v. 
Denny,  1  Ex.  196. 

878  Foot  v.  Brown,  8  Johns.  64. 

879  Secor  v.  Harris,  18  Barb.  425,  and  Sumner  v.  Utley,  7  Conn.  257 ;  Johnson 
V.  Robertson,  8  Port.  486 ;   Camp  v.  Martin,  23  Conn.  86. 

880  Drake  v.  Drake,  Sty.  363 ;  and  see  Cranden  v.  Walden,  3  Lev.  17 ;  Bishop 
of  Norwich  Case,  Cro.  Eliz.  1 ;  Dod  v.  Robinson,  Aleyn,  63,  and  Gallwey  v.  Mar- 
shall, 9  Ex.  294. 

881  Phillips  v.  Badly,  4  Rep.  19  a. 
888  Nicholson  v.  Lynes,  Cro.  Eliz.  94. 

883  McMillan  v.  Birch,  1  Binn.  178;  Chaddock  v.  Briggs,  13  Mass.  248  ;  contra 
see  Buck  v.  Hersey,  31  Maine  (1  Red.)  558 ;  O'Han/on  v.  Myers,  10  Rich.  Law 
(So.  Car.)  128.  In  Dod  v.  Robinson,  Aleyn,  63,  the  words  were:  You  are  a 
drunkard,  a  whoremaster,  a  common  swearer  and  a  common  liar,  and  you  have 
preached  false  doctrine,  and  deserve  to  be  degraded.  These  words  were  held  ac- 
tionable. 

884  Demarest  v.  Haring,  6  Cow.  76.  It  seems  that  in  England  to  render  such 
a  charge  actionable,  the  person  affected  must  be  beneficed,  or  in  the  actual  receipt 
of  professional  emolument  as  a  preacher,  lecturer,  or  the  like.  ( Gallwey  v.  Mar- 
shall, 9  Ex.  294;  24  Eng.  Law  &  Eq.  R.  463 ;  and  see  note  577  ante.) 

885  Spoken  of  a  paid  preacher  or  lay  exhorter  of  the  Methodist  Church.  (Starr 
v.  Gardner,  6  Up.  Can.  Q.  B.  Rep.  0.  S.  512.) 

886  Special  damage  being  alleged.  (Payne  v.  Beaumorris,  Lev.  248.)  He  is  a 
lewd  adulterer,  and  hath  two  children  by  the  wife  of  O.  S.,  spoken  of  a  clergy- 
man, held  not  actionable.  (Parret  v.  Carpenter,  Noy,  64,  and  ante,  note  772.) 
And  so  of  the  words,  You  are  an  old  rogue,  rascal,  and  contemptible  fellow 
{Musgrove  v.  Bovey,  Stra.  946.) 

887  Hogg  v.  Vaughan,  Sty.  6. 


220  WHAT   LANGUAGE   IS   ACTIONABLE. 

publication,  and  who  had  been  a  draper  in  partnership  with 
11.  P.,  and  who  had  a  controversy  with  H.  P.  as  to  the  partner- 
ship accounts  :  "  I  do  not  go  by  reports,  I  go  by  a  knowledge  of 
facts.  Mr.  H.  (the  plaintiff)  is  a  rogue,  and  I  can  prove  him  to  be 
so  by  the  books  at  S.  He  pretends  to  say  he  has  been  as  good  as 
a  father  to  H.  P.,  when  in  fact  he  has  been  robbing  him.  He  has 
cheated  P.  of  £2,000.  I  will  so  expose  him  that  he  will  not  be 
able  to  hold  up  his  head  in  T.  pulpit.  *  *  *  I  wonder  how  any 
respectable  person  can  countenance  such  a  man  by  their  pres- 
ence. I  have  been  advising  some  persons  to  go  to  the  Wesleyan 
chapel  as  they  would  hear  plain  honest  men."888  So  the  follow- 
ing words  spoken  of  a  clergyman  were  held  not  actionable : 
"  Dr.  P.  (plaintiff')  placed  before  me  a  bill,  I  signed  it ;  I  do 
not  know  for  what  amount  it  was,  for  I  was  completely  pigeoned 
by  Dr.  P."  (plaintiff).889  In  the  same  case  the  following  words 
spoken  of  a  clergyman,  held  to  touch  him  in  his  professional 
character,  and  to  be  actionable :  "  The  very  day  I  came  into 
residence,  Dr.  P.  (plaintiff)  sent  for  me ;  I  went  and  dined 
with  him,  and  the  wine  must  have  been  drugged,  for  I  took  but 
two  glasses  and  was  quite  stupefied.  While  in  this  condition 
Dr.  P.  put  a  bill  into  my  hands,  and  requested  me  to  sign  it, 
saying,  C.  just  put  your  name  to  this  ;  I  wish  to  have  it  as  a 
security  for  the  payment  of  £130  per  annum  for  reading  for 
you.  I  answered,  Give  me  a  pen  and  I  will  sign  it.  Imme- 
diately I  had  signed  it,  Dr.  P.  snatched  it  up  and  said,  This  will 
be  quite  safe.  The  bill  I  think  was  drawn  for  £2,500,  but  hav- 
ing been  stupefied  with  the  wine  I  do  not  rightly  remember. 
You  cannot  suppose  I  can  meet  a  man  who  so  cheated  me  at  my 
first  coming  ? "  It  is  actionable  to  charge  a  Protestant  arch- 
bishop  with  having  sought  by  means  of  a  bribe  to  induce  a 


886  Hopwoodv.  Thorn,  8  C.  P.  293. 

""  Pemberton  v.  Colls,  1011 ;  16  Law  Jour.  403,  Q.  B.  To  charge  a  bishop  with 
being  a  wicked  man  {Thomas  v.  Hughes,  2  Mod.  159),  or  a  bankrupt,  said  to  be 
actionable  (Holt  on  Libel,  233,  note);  and  held  actionable  to  publish  in  writing 
that  the  plaintiff,  a  clergyman,  had  caused  a  misunderstanding  in  his  congrega- 
tion by  personal  invectives  from  the  pulpit  against  a  young  lady  of  spotless  repu- 
tation.    (Edwards  v.  Bell,  8  Moore,  467.) 


WHAT   LANGUAGE  IS   ACTIONABLE.  221 

Romish  priest  to  abandon  his  religious  creed.890  It  was  held  not 
actionable  to  charge  a  Roman  Catholic  priest  with  having 
imposed  certain  penance,  there  being  nothing  to  show  that 
enjoining  such  penance  affected  his  character  as  such  priest.891 

§  196.  As  regards  language  concerning  one  in  an  office,  the 
same  general  principles  apply  as  to  language  concerning  one  in 
a  business  or  profession.  Language  concerning  one  in  office 
which  imputes  to  him  a  want  of  integrity  or  misfeasance  in  his 
office,  or  a  want  of  capacity  generally  to  fulfil  the  duties  of 
his  office,  or  which  is  calculated  to  diminish  public  confidence 
in  him,892  or  charges  him  with  a  breach  of  some  public  trust.898 
But  as  in  the  case  of  one  in  trade,  the  language  to  be  actiona- 
ble must  touch  him  in  his  office.894  To  charge  a  judge  with 
erring  in  judgment  or  disregarding  public  sentiment,  or  with 
any  impropriety  which  would  not  furnish  a  cause  of  impeach- 
ment, is  not  actionable  per  se  /  but  to  charge  that  he  had 
"  abandoned  the  common  principles  of  truth,"  or  "lacked  capa- 
city as  a  judge,"  or  made  the  office  of  clerk  of  his  court  a  sub- 
ject of  private  negotiation,  is  actionable  per  se.m  So  it  is 
actionable  per  se  to  charge  that  a  judge  improperly  put  his  offi- 
cial signature  to  the  jurat  of  a  paper  in  the  form  of  an  affida- 
vit,896 or  procured  one  to  take  a  false  oath,897  or  took  a  bribe,898 
or  acted  unjustly  in  his  office,899  or  to  charge  that  he  is  a  lewd 

M0  Tuam  v.  Robeson,  5  Bing.  17 ;  2  M.  <fe  P.  32. 

e91  Hearne  v.  Stowell,  12  Adol.  &  El.  719. 

e9a  Lansing  v.  Carpenter,  9  Wis.  540. 

e93  Kinney  v.  Nash,  3  Corns.  177,  and  authorities  there  referred  to. 

61,4  McGuire  v.  Blair,  2  Law  Reporter,  443,  and  ante,  §  190.  So  that  charging 
a  justice  with  misfeasance  in  trying  a  cause,  not  within  his  jurisdiction,  was  held 
not  actionable  as  not  affecting  him  as  justice.  (Oram  v.  Franklin,  5  Blackf.  42  ; 
see,  however,  Carter  v.  Andrews,  16  Pick.  1 ;  Stone  v.  Clark,  21  id.  51.) 

895  Robbins  v.  Treadway,  2  J.  J.  Marsh.  540. 

Dollaway  v.  Turrill,  26  Wend.  383;  17  id.  426. 

e9'  Chetwind  v.  Meeston,  Cro.  Jac.  308. 

*98  Cotton's  Case,  Mo.  695.  In  Lindsey  v.  Smith,  7  Johns.  360,  an  action  was 
sustained  for  the  words,  "  Lindsey  had  been  feed  by  Abner  Wood,  and  I  could  do 
nothing  when  the  magistrate  was  in  that  way  against  me." 

' M  I  have  often  been  with  him  for  justice,  but  could  never  get  any  at  his 
hands  but  injustice.  Isham  v.  York,  Cro.  Car.  14.  Actionable  to  say  of  a  judge, 
his  sentence  was  corruptly  given.  See  Chaddock  v.  Briggs,  13  Mass.  253;  Chip- 
man  v.  Cook,  2  Tyler,  456. 


222  WHAT    LANGUAGE   IS  ACTIONABLE. 

or  false,900  or  corrupt,901  or  a  partial,902  or  half  eared,  and  will 
hear  but  one  side,  or  that  he  cannot  hear  of  one  ear,903  or  that 
he  perverted  justice,904  or  made  use  of  his  office  to  worry  one 
out  of  his  estate,905  or,  He  is  forsworn  and  not  fit  to  sit  upon  a 
bench,906  or.  He  did  seek  my  life  and  offered  ten  shillings  to  the 
under-sheriff  to  empanel  a  jury  that  might  find  me  guilty.907 
But  held  not  actionable  to  publish  orally  of  a  justice,  He  is  a 
blood-sucker  and  seeketh  after  blood,  if  a  man  will  give  him  a 
couple  of  capons  he  will  take  them  ;m  or,  You  robbed  the  poor 
and  are  worse  than  a  highwayman.909  It  is  not  actionable  to 
say  of  a  mayor,  He  is  a  rogue  and  rascal ; m  or  of  an  alderman, 
When  he  puts  on  his  gown  Satan  enters  it ; 9U  or  of  an  under- 
sheriff,  Thou  didst  serve  an  execution  and  keep  in  thy  hands 
the  money  collected.912  But  it  is  actionable  to  charge  a  sheriff 
with  malpractice  in  his  office ; 913  or  to  say  of  a  constable,  He  is 
not  wi  rthy  of  his  office,  for  he  and  his  company  the  last  time 


900  Wright  v.  Moorhouse,  Cro.  Eliz.  358. 

901  Ceesar  v.  Curseny,  Cro.  Eliz.  305.  You  are  a  rascal,  a  villain,  and  a  liar, 
spoken  of  a  magistrate  in  the  execution  of  his  office,  the  words  import  a  charge 
of  corruption.  (Aston  v.  Blagrave,  1  Strange.  617;  2  L'd  Raym.  1369.)  And  so 
of  the  term  rogue.     Kent  v.  Pocock,  2  Str.  1168. 

903  Kemp  v.  Housgoe,  Cro.  Jac.  90. 

803  Masham  v.  Bridges,  Cro.  Car.  223,  and  Alleston  v.  Moor,  Het.  167. 

904  Delaware  v.  Pawlet,  Mo.  409. 
906  Newton  v.  Stubbs,  3  Mod.  71. 

906  Cam  v.  Osgood,  1  Levinz,  280;  S.  G,  Kerle  v.  Osgood",  1  Vent.  50 ;  and  see 
Pepper  v.  Gag,  2  Lutw.  1288;  Stutley  v.  Bulhead,  4  Rep.  16  a,  19  a  ;  Lasseh  v. 
Lasse.ls,  Mo.  401 ;  Hollis  v.  Briscow,  Cro.  Jac.  58;  Burton  v.  Tokin,  Cro.  Jac.  143  ; 
Beant'ind  v.  Hastings,  Cro.  Jac.  240. 

907  Blewrhasset  v.  Baspoole,  Cro.  Eliz.  313. 

908  Hilliardv.  Constable,  Mo.  418.  Held  actionable  to  publish  in  writing  of  a 
justice  that  he  had  been  chairman  of  a  finance  committee,  and  had  audited 
accounts,  containing  items  nominally  to  furnish  lodgings  for  the  judges,  but  in 
reality  for  the  accommodation  of  the  magistrates;  innuendo  that  plaintiff  had 
conducted  himself  corruptly  in  his  office  of  justice.  (Adams  v.  Miredew,  3  Y.  <fe  J. 
219,  overruling  S.  C,  2  Y.  &  J.  417.) 

909  Palmer  v.  Edwards,  Rep.  of  Cas.  of  Prac.  in  C.  B.  160. 

910  Reg  v.  Langleg,  6  Mod.  125;  2  Salk.  697. 

911  2  StarMe  on  Slander,  314. 

912  Oeeve  v.  CopshUl,  Cro.  Eliz.  854. 

913  Dole  v.  Van  Rensselaer,  1  Johns.  Cas.  330. 


WHAT   LANGUAGE   IS    ACTIONABLE.  223 

he  was  constable  stole  five  of  my  swine  and  eat  them  ;914  or  to 
publish  in  writing  of  a  police  officer  that  he  had  been  guilty 
of  blackmailing  and  had  been  dismissed  for  that  cause.915  But 
held  not  actionable  to  publish  orally  of  a  police  officer,  I  saw  a 
letter  respecting  an  officer  of  the  L.  police,  who  had  been  guilty 
of  conduct  unfit  for  publication,  there  being  no  allegation  of 
special  damage  and  the  charge  not  being  connected  with  his 
official  character.916  It  is  actionable  to  publish  orally  of  the 
director  of  a  public  company,  that  he  had  sold  the  property  of 
the  company  and  pocketed  the  money ; 917  or  of  a  town  clerk 
acting  as  moderator  of  a  town  meeting,  that  he  had  fraudulently 
destroyed  a  vote;918  or  of  an  administrator,  that  he  had  been 
guilty  of  fraud  in  the  appraisement  of  the  estate  of  the  dece- 
dent ;919  or  of  a  juror,  that  he  agreed  with  another  juror  to  de- 
termine the  'amount  of  damages  to  be  given  in  a  certain  cause 
in  which  he  acted  as  juror,  by  the  result  of  a  game  of  draughts.9520 
A  churchwarden  holds  a  temporal  office,  and  to  charge  him 
with  cheating  the  parish,  is  actionable.921  It  is  actionable  to 
publish  in  writing  of  a  court  commissioner,  that  he  will  act  in 
his  judicial  office  according  to  the  views  of  the  persons  "  whose 
tool  and  toady  he  is,  and  that  the  past  would  warrant  the  de- 
priving him  of  his  office  ;',9a2  of  an  overseer,  that  when  out  of 
office  he  advocated  low  rates,  and  that  he  (defendant)  would 


■M  Taylor  v.  Howe,  Cro.  Eliz.  861.  Doubtful  if  actionable  to  say  of  a  consta- 
ble, Thou  art  a  cozening  knave,  and  has  cozened  the  parish  in  rates  to  £30. 
(Thomas'  Case,  Het.  36.) 

915  Edsall  v.  Brooks,  11  Abb.  Pra.  R.  221 ;  2  Robertson,  29. 

916  James  v.  Brook,  9  Q.  B.I;  16  Law  Jour.  17  Q.  B. ;  10  Jur.  541. 

917  Johnson  v.  Shields,  1  Dutcher,  116. 
01t  Lodds  v.  Henry,  9  Mas.  262. 

919  Beck  v.  Stitzel,  21  Penn.  St.  R.  (9  Harris),  522. 

920  Commonwealth  v.  Wright,  1  Cush.  46.  The  charge  was  in  writing.  Held 
actionable  to  publish  orally  of  a  juryman.  Thou  art  a  common  juryman,  and  hast 
been  the  overthrow  of  one  hundred  men  by  thy  false  means.  Yin.  Abr.  Act  for 
Words,  F.  a.  23. 

921  Tovmsend  v.  Barker,  Sty.  394 ;  Woodruff  v.  Wooley,  Curt.  1 ;  Strode  v. 
Holmes  Sty.  338 ;  and  see  Hutf^n  v.  Beck,  Cro.  Jac.  339 ;  Hopton  v.  Baker,  2 
Bulst.  218;  Willis  v.  Shepherd,  Cro.  Jac.  619. 

922  Lansing  v.  Carpenter,  9  Wis.  540. 


224  WHAT  LANGUAGE   IS   ACTIONABLE. 

not  trust  him  (plaintiff)  with  £5  of  his  private  property;923  or 
of  an  overseer,  that  lie  had  been  guilty  of  illiberal  and  illegal 
practices  towards  paupers,  in  compelling  them  to  procure  goods 
from  a  particular  person,  and  threatening  Mm  with  the  penalties 
of  the  act  against  such  practices ;  "*  or  of  a  postmaster,  who  re- 
sided in  the  house  used  as  the  post-office,  that  the  house  in  which 
the  post-office  is  kept  is  of  such  a  low  character  that  a  decent 
lady  dare  not  enter.925  And  actionable  to  publish  orally  of  a 
postmaster  that  he  opened  a  letter,  took  money  out  of  it,  and 
appropriated  it  to  his  own  use,  and  kept  and  embezzled  let- 
ters ;m  or  that  he  would  rob  the  mail  for  five  hundred  dollars — 
yes,  he  would  rob  the  mail  for  five  dollars.927  It  is  not  actiona- 
ble to  charge  a  member  of  Parliament  with  want  of  sincer- 
ity ; m  or  a  member  of  the  legislature,  in  reference  to  the  future 
discharge  of  his  functions,  with  being  a  corrupt  old  tory.929  It 
is  actionable  to  publish  in  writing  of  a  member  of  Congress, 
"  He  is  a  fawning  sycophant,  a  misrepresentative  in  Congress, 
and  a  grovelling  office-seeker ;  he  has  abandoned  his  post  in 
Congress  in  pursuit  of  an  office ;"  m  or  of  a  lieutenant-governor, 
that  he  was  in  a  beastly  state  of  intoxication  while  in  the  dis- 
charge of  his  duty  in  the  senate,  and  was  an  object  of  loathing 
and  disgust ; 931  or  a  commissioner  of  bankrupts,  with  being  a 

923  The  jury  found  that  the  words  imputed  dishonesty.  ■  Cheese  v.  Scales,  10 
M.  &  W.  448. 

924  Woodward  v.  Dowsing,  2  M.  &  Ry.  74. 

925  Johnson  v.  Stebbins,  5  Ind.  (Porter),  364. 

?2C  HaysY.  Allen,  3  Blackf.  408.  See  contra,  M'Cuen  v.  Ladlum,  2  Harr.  12, 
and  notes  563,  708  ante,  and  Taylor  v.  Kneeland,  1  Doug.  67. 

927  Craig  v.  Brown,  5  Blackf.  44. 

928  Onslow  v.  Home,  2  W.  Black.  750;  3  Wils.  177.  The  words  complained  of 
were:  "  As  to  instructing  our  members  to  obtain  redress,  I  am  totally  against  that 
plan;  for  as  to  instructing  Mr.  Onslow  (the  plaintiff),  we  might  as  well  instruct 
the  winds,  and  should  he  (the  plaintiff)  ever  promise  his  assistance,  I  should  not 
expect  him  to  give  it  us."  One  of  the  reasons  for  holding  the  words  not  action- 
able was,  they  did  not  charge  the  plaintiff  with  any  breach  of  his  duty,  his  oath, 
or  any  crime  or  misdemeanor  whereby  he  had  suffered  any  temporal  loss,  in  future 
office,  or  in  any  way  whatever. 

929  Hogg  v.  Dorrah,  2  Port.  212. 

930  Tho-mas  v.  Crosswell,  7  Johns.  264. 

931  EoolY.  King,  7  Cow.  613;  4  Wend.  113. 


WITH   SPECIAL   DAMAGE.  225 

misanthropist,  and  violent  partisan,  stripping  unfortunate  debt- 
ors of  every  cent,  and  then  depriving  them  of  the  benefit  of  the 
act.933 

§  197.  We  have  already  directed  attention  to  the  distinction 
between  patently  and  latently  wrongful  acts,  and  to  the  rule 
of  law  that  the  necessary  and  natural  and  proximate  conse- 
quences of  an  act  are  those  alone  for  which  the  actor  is  respon- 
sible [§  61]  ;  and  we  have  pointed  out  the  difference  between 
language  being  actionable  per  se  and  actionable  only  by  reason 
of  special  damage  [§  146].  So  far,  this  chapter  has  been  solely 
devoted  to  language  actionable  per  se  /  we  have  now  to  con- 
sider what  language  concerning  a  person  is  actionable,  because 
and  only  because  its  publication  has  occasioned  special  do/m- 
age. "  Undoubtedly,  all  words  are  actionable  if  a  special  dam- 
age follows."933  "Any  words  are  actionable  by  which  the 
party  has  a  special  damage."934  "To  make  words  actionable, 
they  must  be  such  that  special  damage  may  be  the  fair 
and  natural  result  of  them."933  "There  must  be  some  limit  to 
liability  for  words  not  actionable  per  se,  both  as  to  the  words 
and  the  kind  of  damages,  and  a  clear  and  wise  one  has  been 
fixed  by  law." m  The  limitation  is,  that  special  damage  must 
ensue.  But  what  is  meant  by  special  damage  %  Special  dam- 
age is  a  term  ambiguously  employed  ;  properly,  it  connotes  the 
natural  and  proximate  but  not  necessary  consequences  of  a 
wrongful  act  ;937  but  it  is  frequently  used  to  indicate  any  or  all 

932  Riggs  v.  Denniston,  3  Johns.  Cas.  198. 

933  Heath,  J.,  Moore  v.  Meagher,  1  Taunt.  39 ;  and  see  among  other  cases, 
Wilby  v.  Ehton,  13  Jur.  706;  8  C.  B.  142;  7  Dowl.  &  L.  143;  Barnes  v.  Trundy, 
31  Maine  (1  Red.),  321 ;  McCucn  v.  Ludlam,  2  Hacj\  12;  Bentley  v.  Reynolds,  1 
McMullan,  16. 

934  Comyn's  Dig.,  Act.  for  Defam.  D,  30. 

935  Taunton,  J.,  Kelly  v.  Partington,  3  Nev.  &  M.  116;  5  B.  &  Adol.  645. 
930  Strong,  J.,  Terwilliger  v.  Wands,  17  N.  Y.  61. 

937  Such  damages  as  are  the  natural,  although  not  the  necessary  result  of  the 
injury,  are  termed  special  damages.  (  Vanderslice  v.  Newton,  4  N.  Y.  132.)  The 
special  damage  must  be  the  immediate,  not  the  remote  consequence  of  the  publi- 
cation. {Beach  v.  Ranney,  2  Hill,  309  ;  Scwellv.  Catlin,  3  Wend.  291.)  "  The  dam- 
age must  be  the  natural  and  proximate  consequence  of  the  wrongful  act  com- 
15 


226  WHAT  LANGUAGE   IS  ACTIONABLE 

loss  which,  not  being  a  necessary  consequence,  is  the  subject  of 
other  proof  than  the  mere  commission  of  the  act  complained 
of,  and  without  regard  to  whether  such  loss  is  or  is  not  a  natu- 
ral or  natural  and  proximate  consequence  of  such  act.  The 
term  is  employed  in  the  latter  sense  when  it  is  said  that  lan- 
guage which  occasions  special  damage  is  not  actionable  unless 
it  be  defamatory,938  which  is  equivalent  to  saying,  that  language 
which  as  a  natural  and  proximate  consequence  occasions  loss, 
is  not  actionable  unless  it  is  injurious  [defamatory].  If  the 
language  is  not  injurious  [defamatory]  in  its  nature,  it  cannot 
as  a  natural  consequence  occasion  loss,  and  it  may  well  be  that 
none  other  than  language  defamatory  in  its  nature*  [disparaging] 
can  as  a  natural  and  proximate  consequence  occasion  loss.  It 
may  be  correct  to  say  that  "  to  make  the  words  wrongful  they 
must  in  their  nature  be  defamatory," 939  provided  the  rule  thus 
expressed  be  understood  as  being  subordinate  to  and  implied  in 
the  more  comprehensive  rule,  that  to  render  actionable  that 
language  which  is  not  actionable  jper  se,  the  language  must 
occasion  special  damage,  in  the  proper  sense  of  that  term.940 
The  real  question  must  always  be,  was  the  damage  complained 
of  a  natural  and  proximate  consequence  of  the  publication.941 
For  "  it  is  a  rule  equally  consistent  with  good  sense,  good  logic, 
and  good  law,  that  a  person  who  would  recover  damages  for  an 

plained  of."  (2  Smith's  Lead.  Cas.  534,  6th  ed.)  "  I  have  always  understood  that 
the  special  damage  must  be  the  natural  result  of  the  thing  done."  (Patteson,  J., 
Kelly  v.  Partington,  5B.&  Adol.  546 ;)  and  see  Haddon  v.  Lolt,  15  C.  B.  411 ; 
24  Law  Jour.  Rep.  N.  S.  49  C.  P. ;  29  Eng.  Law  and  Eq.  R.  215. 

938  « rp^g  special  damage  will  not  help  you  if  the  words  are  not  defamatory." 
(Blackburn,  J.,  Young  v.  McCrae,  3  Best  &  S.  264  ;  7  Law  Times,  N.  S.  354.) 

939  Patteson,  J.,  Kelly  v.  Partington,  5  B.  <fe  Adol.  645. 

940  "  I  cannot  agree  that  words  laudatory  of  a  person's  conduct  would  be  the 
subject  of  an  action  if  they  were  followed  by  special  damage.  They  must  be 
defamatory  or  injurious  in  their  nature."  (Littledale,  J.,  Kelly  v.  Partington,  3  ' 
Nev.  &  M.  117;  5  B.  &  Adol.  645.)  "The  words  must  be  defamatory  in  their 
nature  ;  and  must  in  fact  disparage  the  character,  and  this  disparagement  must 
be  evidenced  by  some  positive  loss  arising  therefrom  directly  and  legitimately 
as  a  fair  and  natural  result."  (Strong,  J.,  Terwilliger  v.  Wands,  17  N.  Y.  61) ;  and 
see  Hallock  v.  Miller,  2  Barb.  633. 

M1  Denman,  Ch.  J.,  Knight  v.  Gibbs,  3  Nev.  &  M.  467 ;  1  Adol.  &  El.  48. 


WITH  SPECIAL   DAMAGE.  227 

injury  occasioned  by  the  conduct  of  another,  must  show  as  an 
essential  part  of  his  case,  the  relation  of  cause  and  effect  be- 
tween the  conduct  complained  of  and  the  injury  sustained."  m 

§  198.  What  is  special  damage  ?  Special  damage  consists943 
in  the  loss  of  marriage,  loss  of  consortium  of  husband  and 
wife,944  loss  of  emoluments,  profits,  customers,  employment  or 
gratuitous  hospitality,943  or  by  the  being  subjected  to  any  other 
inconvenience  or  annoyance  occasioning  or  involving  an  actual 
or  constructive  pecuniary  loss,946  as  where  the  plaintiff,  an  un- 
married woman,  in  consequence  of  a  charge  of  incontinence, 
was  refused  civil  treatment  at  a  hotel  or  tavern.947  A  charge 
of  incontinence  against  an  unmarried  woman,  whereby  she 
loses  her  marriage,  is  actionable,  as  to  say  of  the  plaintiff, 

9"  Olmstcadv.  Brown,  12  Barb.  662. 

943  "  As  to  what  constitutes  special  damage,  Starkie  mentions  the  loss  of  mar- 
riage, loss  of  hospitable  gratuitous  entertainment,  preventing  a  servant  or  bailiff 
from  getting  a  place,  the  loss  of  customers  by  a  tradesman,  and  says  that  in  gen- 
eral whenever  a  person  is  prevented  by  the  slander  from  receiving  that  which 
would  otherwise  be  conferred  upon  him,  though  gratuitously,  it  is  sufficient." 
Terwilliger  v.  Wanda,  17  N.  Y.  60;  citing  Starkie  on  Slander,  195,  202;  Cooke 
on  Defam.  22,  24.  Plaintiffs  being  refused  employment  [Strong  v.  Forman,  2 
Car.  &  P.  592),  or  insurance  upon  a  ship  of  which  he  was  master  (Shipman  v. 
Burrows,  1  Hall,  399),  is  special  damage. 

944  Lynch  v.  Knight,  5  Law  Times,  N.  S.  291 :  Parkins  v.  Scott,  6  id.  394. 

945  Moore  v.  Meagher,  1  Taunt.  39 ;    Williams  v.  Hill,  19  Wend.  305. 

946  "  All  the  cases  proceed  upon  the  assumption  that  the  plaintiff  has  sustained 
some  pecuniary  loss  in  consequence  of  the  slander.  It  is  not  sufficient  that  she 
has  fallen  into  disgrace,  contempt,  and  infamy,  and  lost  her  credit,  reputation, 
and  peace  of  mind,  or  the  society  or  good  opinion  of  her  neighbors,  unless  she 
has  been  injured  in  her  estate  or  property."  Woodbury  v.  Thompson,  3  N". 
Hamp.  194;  and  see  ante,  notes  43,  48  ;  Kelly  v.  Partington,  3  Nev.  &  il.  116  ;  5 
B.  &  Adol.  645 ;  Keenholts  v.  Pecker,  3  Denio,  346 ;  Foulger  v.  Newcomb,  2  Law 
Rep.  330,  Ex.  "  One  essential  element  of  a  good  cause  of  action  for  defamation 
is  damage,"  but  in  Terwilliger  v.  Wands,  17  N.  Y.  61,  and  Wilson  v.  Goit,  id.  442, 
the  whole  tenor  of  the  opinions  imply  that  loss  of  reputation  is  the  gist  of  the 
action,  and  in  the  first  named  case  it  is  said,  "  It  is  injuries  affecting  the  reputa- 
tion only,  which  are  the  subject  of  the  action."  "The  special  damage  must  flow 
from  impaired  reputation."  This,  however,  may  mean  only  that  the  language 
must  be  defamatory.    See  ante,  note  43. 

947  Olmsteadv.  Miller,  1  Wend.  510. 


228  WHAT  LANGUAGE   IS   ACTIONABLE 

Anne  Reston  hath  had  a  child,  and  if  she  has  not  a  child,  she 
has  made  away  with  it ; m  or,  Yon  ought  not  to  many  M.,  the 
plaintiff,  for  before  God  she  is  my  wife,  and  therefore  if  you  do, 
you  will  live  in  adultery,  and  your  children  will  be  bastards.949 
Loss  of  a  wife  is  the  same  to  a  man  as  loss  of  a  husband  is  to 
a  woman,  and  therefore,  where  defendant  called  the  plaintiff  a 
whoremaster,  whereby  he  lost  his  marriage,  it  was  held  he  could 
maintain  his  action;950  and  so  saying  of  one  who  was  a  wid- 
ower that  he  had  kept  his  wife  basely,  and  starved  her  or 
denied  her  necessaries,  whereby  he  lost  his  marriage,  was  held 
actionable  ; 951  and  calling  plaintiff  bastard,  whereby  he  lost  his 
marriage,  was  held  actionable.952  As  to  loss  of  customers, 
where  it  was  said  of  an  innkeeper,  I  (defendant)  saw  Cook  lie 
with  Collins'  (plaintiff's)  wife,  whereby  plaintiff  lost  his  cus- 
tomers, it  was  held  that  an  action  could  be  maintained  ; 953  and 
so  where  it  was  said  of  an  innkeeper,  that  a  person  had  died  in 
his  house  of  the  plague,  whereby  his  (plaintiff's)  guests  left  his 
house,  it  was  held  he  might  maintain    his  action.954     "Words 

9isRcsto>i  v.  Pomfreicht,  Cro.  Eliz.  639. 

919  Shepherd  v.  Wakeman,  Sid.  79;  Lev.  37.  Saying  of  a  woman,  she  was  a 
man,  not  a  woman,  with  special  damage  held  actionable.  {Pye  v.  Wailis,  cited 
Curt.  55.)     See  Hermaphrodite. 

960  Matthew  v.  Crass,  Cro.  Jac.  323  ;  2  Bulst.  86 ;  and  see  Sell  v.  Facy,  2  Bulst. 
276;  Southall  v.  Daicson,  Cro.  Car.  269 ;  contra,  see  Witcher's  Case,  Keb.  119. 
In  Taylor  v.  Tally,  Palmer,  385,  defendant  said  of  plaintiff  that  he,  plaintiff,  had 
ravished  the  wife  of  H. ;  and  plaintiff  alleging  that  thereby  he  lost  his  marriage, 
the  words  were  held  actionable. 

951  Anon.  Mar.  2 ;    Wicks  v.  Shepherd,  Cro.  Car.  155. 

952  Nelson  v.  Staff,  Cro.  Jac.  422. 

953  Collins  v.  Matthews,  3  Keb.  242. 

964  Comyn's  Dig.,  Act.  for  Def.  D.  29;  as  to  loss  of  customers,  see  Evans  v. 
Harries,  1  Hurl.  &  Nor.  251 ;  38  Eng.  Law  and  Eq.  R.  347  ;  Vin.  Abr.  Act.  for 
Words,  U.  a.  13  ;  Barrow  v.  Gibson,  L'd  Raym.  831 ;  1  Str.  566  ;  Bull.  N.  P.  7  ; 
1  Lev.  140  ;  Trenton  his.  Co.  v.  Perrine,  3  Zabr.  402.  Action  by  a  butcher  for 
saying  a  cow,  the  carcass  of  which  he  had  to  sell,  died  of  calving,  by  which  he 
lost  his  customers,  judgment  was  given  for  the  plaintiff,  but  reversed  on  error, 
the  alleged  loss  of  customers  being  too  general ;  but  held  that  had  it  been  laid 
the  plaintiff  exposed  the  meat  for  sale,  and  by  reason  of  the  words  he  lost  the  sale, 
the  action  could  nave  been  maintained.  Rice  v.  Pidgeon,  Comb.  161,  and  Tassan 
v.  Rogers,  2  Salk.  693.     "A  distinction  has  been  made  between  particular  damage 


WITH    SPECIAL  DAMAGE.  229 

imputing  incontinence  to  a  dissenting  minister,  whereby  the 
persons  frequenting  his  chapel  refused  to  permit  him  to  preach, 
and  discontinued  giving  him  certain  reward  as  they  usually  had, 
and  but  for  the  publication  complained  of  would  have  done, 
were  held  actionable.955  Where  the  declaration  alleged  that 
plaintiff  being  the  proprietor  of  certain  rooms  adapted  for  a 
dancing  academy,  defendant  falsely  and  maliciously  published 
of  the  building  and  rooms,  and  of  plaintiff  as  proprietor  thereof, 
that  "  the  magistrates  having  refused  to  renew  a  .music  and 
dancing  license  to  the  proprietor,  all  such  entertainments  there 
carried  on  are  illegal,  and  the  proprietor  renders  himself  thereby 
indictable  for  keeping  a  disorderly  house,  and  every  person 
found  on  the  premises  will  be  apprehended  and  dealt  with 
according  to  law,"  by  means  of  which  premises  plaintiff  was 
prevented  from  letting  said  rooms  ;  held  on  demurrer  that  the 
declaration  disclosed  a  cause  of  action.956 

§  199.  It  seems  that  where  the  person  to  whom  the  publica- 
tion is  made  is  by  reason  of  the  charge  induced  to  act  upon  it 

and  general  damage ;  thus,  in  an  action  for  slandering  a  man  in  his  trade,  when 
the  declaration  alleges  that  he  thereby  lost  his  trade,   he  may  show  a  general 
damage  to  his  trade,  though  he  cannot  give  evidence  of  particular  instances." 
(Creswell,  J.,  Rose  v.  Groves,  5  M.  &  G.  618.) 
865  Hartley  v.  Herring,  8  Term.  R.  130. 

966  Bignell  v.  Buzzard,  3  Hurl.  &  Nor.  217.  In  Dibdin  v.  Swan,  1  Esp.  Cas. 
28,  the  plaintiff  was  the  proprietor  of  a  place  of  amusement  called  Sans  Souci, 
where  he  sang  certain  songs,  supposed  to  be  composed  by  himself;  he  sued  the 
defendant,  the  proprietor  of  a  newspaper  called  the  World,  for  publishing  in  that 
paper  that  such  song3  were  not  composed  by  the  plaintiff;  that  on  the  first  night 
when  plaintiff  sang  there  had  been  a  very  thin  audience,  and  that  composed  of 
persons  admitted  by  orders  [for  free  admission],  and  that  the  applause  was  only 
from  the  persons  so  admitted.  The  report  does  not  state  the  result  of  the  case 
but  merely  the  charge  of  Lord  Kenyon  that  the  editor  of  a  newspaper  may 
fairly  and  candidly  comment  on  any  place  or  species  of  public  entertainment,  but 
it  must  be  done  fairly  and  without  malice  or  view  to  injure  the  proprietor.  That 
if  so  done,  however  severe  the  censure,  the  justice  of  it  screens  the  editor  from 
legal  animadversion ;  but  if  the  comment  be  unjust,  malevolent,  or  exceeding  the 
bounds  of  fair  opinion,  it  is  actionable.  As  to  comments  on  theatrical  perform- 
ances,  see  Fry  v.  Bennet,  5  Sand.  54;  3  Bosw.  200;  28  .N.  Y.  324;  Gregory  v. 
Duke  of  Brunswick,  G  M.  &  G.  953. 


230  WHAT   LANGUAGE   IS  ACTIONABLE 

to  the  prejudice  of  the  person  whom  it  may  concern,  it  is  im- 
material whether  the  person  to  whom  the  publication  was  made 
believed  or  disbelieved  in  the  truth  of  the  charge ;  thus,  where 
a  charge  was  made  to  a  mistress  against  a  female  (the  plaintiff) 
in  her  employ,  in  consequence  of  which  she  dismissed  the  plain- 
tin0  from  her  employ,  on  the  trial  she  testified  that  such  dismis- 
sal was  not  because  she  believed  the  charge  to  be  true,  but 
because  she  was  afraid  she  should  offend  the  defendant,  her 
landlord,  by  retaining  plaintiff  in  her  employ ;  held,  that  the 
special  damage  being  the  consequence  of  the  charge,  the  action 
was  maintainable,  the  court  could  not  speculate  upon  motives 
of  witnesses.957 

§  200.  Mere  apprehension  of  loss  is  not  such  special  damage 
as  will  maintain  an  action ;  as  where  defendant  said  of  plain- 
tiff that  he  had  two  bastards,  and  the  alleged  special  damage 
was  that,  by  reason  of  the  words,  a  contention  arose  between 
plaintiff  and  his  wife,  and  he  was  in  danger  to  be  divorced.958 
And  where  the  defendant  said  of  plaintiff  she  is  with  child  hj 
T.  S.,  and  the  alleged  special  damage  was  that  in  consequence 
of  the  words  the  father  of  plaintiff  threatened  to  turn  her  out 
of  his  house,  this  was  held  not  to  amount  to  such  special  dam- 
age as  would  support  an  action.959  Where  the  plaintiff  alleged 
that  she  was  a  single  woman  and  chaste,  and  that  her  mother 
meant  to  give  her  £150  and  her  brother  £100,  and  that  by  rea- 
son of  the  defendant's  charging  her  with  incontinence,  they  did 
not  give  her  these  sums,  it  was  doubted  if  the  action  was  main- 

96T  Knight  v.  Gibbs,  3  Nev.  &  M.  467 ;  1  Adol.  &  El.  43.  I  do  not  know  that 
the  belief  of  the  party  is  at  all  material.  I  may  not  believe  a  charge,  and  yet  I 
may  not  have  the  courage  to  keep  a  person  who  is  suspected  by  others.  I  think 
it  better  that  we  should  lay  it  down  generally,  that  if  the  words  are  slanderous 
and  are  acted  upon  to  the  prejudice  of  the  party  slandered,  an  action  may  be 
maintained.  (Id.)  To  the  like  effect  see  Gillett  v.  Bullivant,  7  Law  Times,  490. 
Contra  is  a  dictum,  Wilson  v.  Goit,  17  N.  Y.  445.  An  action  of  slander  *  * 
would  plainly  be  perverted  if  allowed  where  the  slanderous  words  were  not 
credited  by  any  individual. 

058  Handle  v.  Seal,  Cro.  Jac.  473 ;  Salter  v.  Brown,  Cro.  Car.  436. 
969  Barnes  v.  Strudd,  2  Keb.  451. 


WITH   SPECIAL  DAMAGE.  231 

tamable,  and  no  judgment  was  rendered.960  Again,  where  the 
plaintiff  alleged  that  by  reason  of  the  publication  he  had  incur- 
red the  ill-will  of  his  mother-in-law,  who  had  previously  promised 
him  £100,  held  that  no  cause  of  action  was  shown.961  Where 
the  injury  to  the  plaintiff  is  the  result  in  part  only  of  the  de- 
fendant's act,  subject  to  the  qualifications  hereafter  to  be  men- 
tioned, it  will  not  give  a  right  of  action  against  the  defendant; 
thus,  where  the  plaintiff  was  discharged  from  his  employment 
partly  on  account  of  the  publication  by  the  defendant  and  partly 
for  other  causes,  it  was  held  that  the  plaintiff  could  not  re- 
cover.963 And  where  the  plaintiff  alleged  that  in  consequence 
of  the  words  he  (the  plaintiff)  refused  to  marry  his  betrothed, 
and  so  he  lost  his  marriage,  it  was  held  the  loss  of  marriage  did 
not  under  such  circumstances  constitute  special  damage.963 
Where  the  plaintiff  alleged  that  by  reason  of  the  language  pub- 
lished by  the  defendant  all  honest  persons  refused  to  marry  their 
daughters  to  him  (the  plaintiff),  held  that  the  plaintiff  did  not 
disclose  a  cause  of  action.964  As  the  law  gives  no  remedy  for 
outraged  feelings  or  sentiments  [§56],  a  sickness  induced  by 
mental  distress  in  consequence  of  the  language  published,  fol- 
lowed by  inability  to  transact  business  and  expense  for  medical 
attendance,  does  not  constitute  special  damage,  and  for  words 
not  actionable  j?<?r  se  which  occasion  such  results,  no  action  can 
be  maintained.965  If,  after  a  recovery  has  been  had  in  an  action 
for  slander  or  libel,  special  damage  occurs,  no   action  can  be 

960  Bracebridge  v.  Watson,  Lilly  Ent.  61. 

961  Harris  v.  Porter,  Curt.  1. 

962  Vickars  v.  Wilcocks,  8  East,  1 ;  2  Stark.  Ev.  637. 

963  Carter  v.  Smith,  Vin.  Abr.  Act.  for  Words,  D.  a.  10. 

964  Norman  v.  Simons,  Vin.  Abr.  Act.  for  Words,  D.  a.  12. 

905  Terwilliger  v.  Wands,  17  N.  Y.  54;  Wilson  v.  Goit,  17  N.  Y.  442;  Alsop  v. 
Alsop,  5  Hurl.  &  Nor.  531 ;  Bedell  v.  Powell,  13  Barb.  183.  These  decisions  over- 
rule Branelt  v.  Towsley,  13  Wend.  253;  Fuller  v.  Fenner,  16  Barb.  333;  Olmstead 
v.  Brown,  12  Barb.  657 ;  Underbill  v.  Welton,  32  Verm.  (3  Shaw),  40.  That  plain- 
tiff was  shunned  by  her  neighbors  and  turned  out  of  the  moral  reform  society, 
was  held  not  to  constitute  special  damage.  (Beach  v.  Ranney,  2  Hill,  309 ;  and 
see  ante,  note  946.)  Loss  of  a  wife's  services  from  illness  occasioned  by  the  pub- 
lication of  language  not  actionable  per  se,  is  not  special  damage,  so  as  to  give  a 
right  of  action  to  the  husband.     Wilson  v.  Goit,  17  N.  Y.  442;  and  see  Guy  v. 


232  WHAT  LANGUAGE   IS   ACTIONABLE 

maintained  therefor,  the  first  recovery  is  a  bar  to  any  subsequent 
action.966 

§  201.  It  has  been  very  generally  reputed  and  accepted  for 
law  that  the  illegal  act  of  a  third  party  cannot  constitute  special 
damage ; m  in  other  words,  that  one  illegal  [wrongful]  act  can- 
not be  a  natural  and  proximate  consequence  of  another  illegal 
[wrongful]  act.  This  idea  appears  very  frequently  in  the  reports 
in  the  expression  that  special  damage  must  be  the  natural  and 
legal  consequence  of  the  act  complained  of.  The  case  usually 
referred  to  in  support  of  this  proposition  is  one  in  which  the 
defendant  asserted  that  plaintiff  had  cut  his  master's  cordage, 
in  consequence  of  which  the  plaintiff's  master,  although  under 
a  binding  contract  to  employ  him  for  a  term  which  had  not  then 
expired,  discharged  him,  it  was  held  the  plaintiff  could  not  re- 
cover ;  that  such  discharge  did  not  constitute  special  damage, 
because  it  was  not  a  natural  and  legal  consequence  of  the  pub- 
lication ;  that  the  defendant  was  no  more  answerable  for  the 
discharge  than  if  in  consequence  of  the  words  spoken  other  per- 
sons had  assaulted  the  plaintiff;  and  that  if  in  such  a  case  plain- 
tiff could  recover,  for  the  refusal  of  a  third  person  to  perform 
his  legal  contract,  he  might  twice  recover  for  the  same  cause — 
once  in  the  action  for  the  slander,  and  again  in  an  action  against 
the  third  person  for  the  breach  of  his  contract.968  It  was  suffi- 
cient to  sustain  this  decision  that  the  discharge  was  not  a  natu- 
ral consequence  of  the  publication;  the  residue  of  the  decision 
is  obiter,  and  is  not  sustainable  either  on  principle  or  precedent. 
Subsequently,  in  an  action  for  words  whereby  one  who  was 
under  a  contract  to  marry  the  plaintiff  broke  his  contract  and 
refused  to  marry  her,  it  was  urged  against  the  maintenance  of 
the  action  that  the  plaintiff  had  her  remedy  on  the  contract  to 

Gregory,  9  Car.  &  P.  584 ;  Dongate  v.  Gardiner,  4  M.  &  W.  5 ;  Beach  v.  Ranney,  2 
Hill,  309. 

960  Bull.  N.  P.  1,  citing  Fittler  v.  Veal,  Cas.  K.  B.  542 ;  Cooke  Defam.  24. 

967  Bentlcy  v.  Reynolds,  1  McMullin,  16. 

908  Vickars  v.  Wilcocks,  8  East,  1 .  This  is  one  of  the  cases  selected  by  Mr. 
Smith  as  a  leading  case,  and  appears  with  an  elaborate  note  in  2  Smith's  Leading 
Cases.     This  case  is  commented  upon  in  a  note,  1  Starkie  on  Slander,  207. 


WITH   SPECIAL   DAMAGE.  233 

marry  her,  that  the  breach  of  the  contract  was  an  illegal  act  of 
the  contracting  party,  and  that  the  breach  of  said  contract  was 
not  special  damage,  because  not  a  legal  consequence  of  the  publi- 
cation, but  the  action  was  sustained.969  These  decisions,  although 
apparently  conflicting,  are  not  so  in  reality ;  for  obviously  an 
illegal  act,  equally  with  a  legal  act,  may  be  the  natural  conse- 
quence of  a  publication,  and  where,  as  in  the  case  of  a  promise 
to  marry,  the  breach  of  it,  although  illegal,  is  nevertheless  a 
natural  consequence  of  the  publication,  in  that  case  the  illegal 
act  constitutes  special  damage ;  but  where  the  breach  of  a  con- 
tract is  not  a  natural,  or,  if  a  natural,  is  not  a  proximate  con- 
sequence of  the  publication,  in  such  a  case,  the  breach  of  con- 
tract does  not  constitute  special  damage,  not  because  such 
breach  is  an  illegal  act,  but  because  it  is  not  a  natural  and  prox- 
imate consequence  of  the  publication.970  Where  the  defendant 
published  language  concerning  one,  an  actress,  in  the  employ  of 
another,  the  proprietor  of  a  theatre,  in  consequence  of  which 
such  employee  refused  to  fulfill  her  engagement  with  her  em- 
ployer (the  plaintiff),  and  whereby  the  plaintiff,  as  he  alleged, 
lost  profits  in  his  business,  it  was  held  that  the  action  could  not 
be  maintained.971  That  the  damages  were  too  remote  is  usually 
assigned,  and  is  one  of  the  expressed  grounds  for  the  decision  ; 
another  and  a  sufficient  ground  would  be,  that  her  refusal  to 
fulfill  her  engagement  was  not  a  natural  result  of  the  publica- 
tion. 

§  202.    Ordinarily   the    repetition    [§  112]    of  defamatory 

969  Moody  v.  Baker,  5  Cow.  351. 

970  There  are  many  cases  where  a  recovery  has  been  had  for  illegal  acts  of 
third  persons  induced  by  the  defendant's  act,  as  for  preventing  workmen  from 
continuing  their  work,  enticing  away  wives,  servants,  apprentices,  or  tenants, 
<fec.  See  in  note  2,  ante,  and  Green  v.  Button,  2  Cr.  M.  &  R.  70*7 ;  Lumley  v.  Gye, 
2  Ell.  &  Black.  216. 

872  Ashley  v.  Harrison,  1  Peake's  Cas.  194.  In  an  action  for  fraudulently  sell, 
ing  plaintiff  diseased  sheep,  held  it  was  not  special  damage  that  in  consequence 
of  a  report  that  plaintiff  had  purchased  defendant's  diseased  sheep,  one  A.  refused 
to  complete  a  contract  he  had  with  plaintiff  for  a  supply  of  meat,  or  that  plain- 
tiff's customers  had  left  him.     (Crain  v.  Pctrie,  6  Hill,  523.) 


23i  WHAT   LANGUAGE   IS  ACTIONABLE 

language  by  another  than  the  first  publisher  is  not  a  natural 
consequence  of  the  first  publication,  and  therefore  except 
under  circumstances  to  be  presently  referred  to,  the  loss  result- 
ing from  the  repetition  of  defamatory  language  does  not  con- 
stitute special  damage,  and  is  not  attributable  to  the  first  pub- 
lisher.972 Thus  where  it  was  alleged  that  defendant  said  of 
plaintiff,  "  He  is  a  rogue  and  a  swindler ;  I  know  enough 
about  him  to  hang  him,"  and  it  was  alleged  as  special  damage 
that  one  B.  who  was  about  to  sell  goods  to  plaintiff  on  credit 
had  by  reason  of  defendant's  representation  refused  to  trust 
plaintiff,  on  the  trial  the  proof  was  that  defendant  spoke  the 
words  to  one  C,  who  repeated  them  to  B.,  and  that  it  was  in 
consequence  of  that  repetition,  and  nothing  else,  that  B.  refused 
to  trust  plaintiff,  it  was  held  the  defendant  was  not  liable  for 
the  consequences  of  the  repetition,  and  that  the  plaintiff  could 
not  recover.973  In  some  instances  the  circumstances  of  the 
case  may  be  such  as  render  the  repetition  of  the  language  by 
another  than  the  first  publisher  a  link  in  the  chain  of  natural 
consequences  of  the  first  publication,  and  the  loss  by  such  rep- 
etition to  the  person  whom  the  language  concerns  a  natural 
and  proximate  consequence  of  the  first  publication,  and  there- 
fore special  damage  for  which  the  first  publisher  is  responsible. 
Where  a  police  magistrate,  after  disposing  of  a  charge  before 
him,  said  to  a  police  officer  (the  plaintiff)  who  had  been  exam- 
ined as  a  witness  in  the  matter,  that  he  was  not  to  be  believed, 
and  this  being  heard  by  another  officer  present  was  by  him 


972  Stevens  v.  Hartley,  11  Mete.  542 ;  Olmsteadv.  Brown,  12  Barb.  657;  Keen- 
holts  v.  Becker,  3  Denio,  346;  Terwilliger  v.  Wands,  17  N.  Y.  58,  and  note  112, 
ante. 

973  Ward  v.  Weeks,  7  Bing.  211.  The  decision  seems  to  have  been  put  on  the 
ground  of  a  variance,  the  allegation  being  that  the  injury  was  in  consequence  of 
a  publication  by  the  defendant,  and  the  proof  being  that  the  injury  was  in  conse- 
quence of  a  publication  by  another.  Where  words  were  spoken  to  a  servant  of  the 
plaintiff  imputing  incontinence  to  the  plaintiff,  and  the  plaintiff  alleged  for  special 
damages  that  in  consequence  of  the  words  J.  S.  who  was  in  communication  of  mar- 
riage with  her  refused  to  marry  her,  the  plaintiff  failed  to  sustain  her  action,  be- 
cause the  words  were  not  spoken  to  J.  S.  (Holwood  v.  Hopkins,  Cro.  E.  787.)  In 
Moody  v.  Baker,  5  Cow.  351,  it  was  held  that  the  declarations  of  the  man  that  he  was 
not  influenced  in  his  refusal  to  marry  by  the  words  published,  were  not  admissible. 


WITH   SPECIAL  DAMAGE.  235 

reported  to  the  plaintiff 's  employers,  the  police  commissioners, 
and  they  in  consequence  dismissed  the  plaintiff  from  their 
employment,  it  was  held,  in  an  action  against  the  magistrate, 
that  such  dismissal  was  special  damage.974  Where  the  plaintiff 
was  governess  in  the  family  of  A.,  and  the  defendant  published 
language  to  the  plaintiff's  father  imputing  to  her  having  had  a 
child  by  A.,  this  language  the  plaintiff's  father  repeated  to  A., 
who  thereupon  dismissed  her  from  his  service,  alleging  as  a 
reason  that  although  he  knew  the  charge  to  be  false,  it  would 
be  injurious  to  the  plaintiff  and  would  be  unpleasant  both  to 
the  plaintiff  and  himself  A.  that  she  should  remain  in  his 
family,  it  was  held  that  the  dismissal  was  a  natural  conse- 
quence of  the  defendant's  first  publication,  for  which  he  was 
liable.9'5  And  so  where  the  plaintiff  was  a  clerk  in  the  employ 
of  C.  &  S.,  who  were  partners,  and  the  defendant,  a  former 
employer  of  plaintiff,  published  to  C,  one  of  said  partners, 
language  imputing  dishonesty  to  the  plaintiff,  this  language  C. 
repeated  to  S.,  his  partner,  and  it  was  held  the  defendant  was 
liable  for  the  consequences  of  the  repetition.976  In  each  of  the 
two  cases  lastly  referred  to,  the  court  evidently  having  in  view 
the  supposed  rule  of  law  above  referred  to  [§  201],  that  special 
damage  must  be  a  legal  consequence  of  the  act  complained  of, 
lays  a  marked  stress  upon  the  fact  that  the  repetition  was  priv- 
ileged, that  is  to  say  that  the  father  in  the  one  case  and  the 
employer  and  partner  in  the  other,  was  justified  in  making  the 
repetition,  and  that  in  neither  case  could  the  plaintiff  have 
maintained  an  action  against  the  one  making  the  repetition,  and 
the  whole  tenor  of  these  decisions  lead  to  the  inference  that 
unless  the  repetition  had  been  justifiable  as  regards  the  person 
making  it,  the  defendant  would  not  have  been  responsible  for 
its  consequences.977     The  repetitions,  however,  were  justifiable 


974  Kendlllon  v.  Mai  lb  y,  1  Car.  &  Marsh.  402. 

076  Gillctt  v.  Bullivavt,  1  Law  Times,  490. 

076  Fowlcs  v.  Bowen,  30  N.  Y.  22. 

977  "  Occasions  may  doubtless  occur  where  the  communication  of  slanderous 
words  by  a  person  who  heard  them  will  be  innocent ;  and  it  is  certainly  reasonable 
that  when  repeated  on  such  an  occasion  and  damages  result,  the  rirst  speaker 


236  WHAT   LANGUAGE   IS  ACTIONABLE 

only  in  part ;  they  were  justifiable  as  to  the  persons  making 
them,  but  not  as  to  the  first  publisher;  they  illustrate  the  prin- 
ciple [§§  67,  121]  that  the  actual  publisher  may  not  be  liable, 
while  another,  not  the  actual  publisher,  is  liable.  In  the  case 
of  Ward  v.  Weeks,  above  referred  to,  the  court  dwelt  on  the 
fact  that  the  defendant  had  not  requested  the  person  to  whom 
he  made  the  publication  to  repeat  the  language,  intimating  in- 
directly at  least  that  if  the  defendant  had  made  such  a  request 
he  would  have  been  liable  for  the  repetition ;  most  probably 
that  would  have  been  the  result,978  but  such  a  request  would 
not  have  justified  the  repetition  [§  67].  It  seems  plain,  there- 
fore, that  it  is  not  the  fact  of  the  repetition  being  or  not  being 
justifiable  that  determines  the  liability  of  the  first  publisher, 
but  the  test  in  every  case  must  be  whether  or  not  the  repetition 
wTas  a  natural  consequence  of  the  first  publication.  It  was 
natural  and  to  be  expected  that  a  father,  when  told  of  the 
seduction  of  his  daughter,  should  seek  out  the  supposed  seducer 
and  tax  him  with  his  offence ;  it  was  natural  and  to  be  expected 
that  a  partner,  when  informed  that  one  in  the  employ  of  him- 
self and  partner  was  dishonest,  should  communicate  the  inform- 
ation to  his  copartner,  therefore  it  was  that  in  both  cases  the 
first  publisher  was  held  to  be  liable  for  the  repetition. 

§  203.  We  have  already  [§  130]  adverted  to  a  distinction 
between  language  concerning  a  person  and  language  concern- 
ing a  thing.  Thus  far,  in  this  chapter,  we  have  confined  our- 
selves exclusively  to  language  concerning  a  person ;  our 
present  business  is  with  language  concerning  things.  As 
respects  language  concerning  things,  no  such  distinction  exists 
between  the  effect  of  oral  and  written  language,  as  is  main- 
tained with  respect  to  language  concerning  persons  [§  18].  By 
things  we  intend  whatever  is  external  to  the  person ;  therefore, 
as  here  used,  things  include  whatever  one  may  or  may  be  enti- 
tled to  own,  possess,  or  enjoy. 

should  be  held  responsible  for  the  damages,  as  flowing  directly  and  naturally 
from  his  own  wrong."  ( Terwilliger  v.  Wands,  17  N.  Y.  58,  cited  Ftwles  v.  Bowen, 
30  N.  Y.  22.) 

978  Keenholts  v.  Becker,  3  Denio,  346. 


CONCERNING   THINGS.  237 

§  204.  As  a  thing  has  no  rights,  and  as  no  one  owes  any  duty 
to  a  thing  [§  38],  no  wrong  can  be  done  to  a  thing,  and  lan- 
guage which  merely  concerns  a  thing  cannot  be  actionable.  In 
other  words,  one  may,  in  good  faith,  speak  or  write  whatever 
he  may  please  concerning  a  thing,  and  with  any  intention  to- 
wards the  thing,  and  for  such  speaking  or  writing  no  action  can 
be  maintained.  The  thing  cannot  complain  ;  it  has  no  right 
which  can  be  invaded.  But  although  things  have  no  rights, 
persons  may  have  a  right  in  or  to  a  thing,  the  right  of  property, 
and  this  right  may  be  invaded  by  language  concerning  the 
thing.  "When  this  invasion  occurs,  the  language  which  effects 
it  is  actionable.  A  loss  of  or  injury  to  the  property  is  not  an 
invasion  of  the  right  of  property,  unless  the  loss  is  occasioned 
by  a  wrongful  act  [§§  48,  49].  A  loss  occasioned  by  a  lawful 
act  does  not  amount  to  a  wrong,  and  does  not  confer  a  right  of 
action  [§  62].  "Where,  therefore,  by  reason  of  an  exercise  of 
the  right  of  speech  or  writing  concerning  a  thing,  the  owner  of 
the  thing  sustains  a  loss,  he  cannot  have  any  redress  therefor, 
as  no  wrong  has  been  done.  Thus  an  action  cannot  be  main- 
tained by  a  manufacturer  or  dealer  against  another,  simply  for 
publishing  that  the  article  he  manufactures,  or  in  which  he  deals, 
is  not  a  good  article,  or  is  a  bad  article,  or  is  not  so  good  as,  or 
is  inferior  to  an  article  manufactured  or  sold  by  some  other  per- 
son.979 But  rights  must  be  exercised  in  good  faith ;  bad  faith 
in  an  act  done  in  the  assumed  exercise  of  a-  right  makes  the 
act  wrongful  [§§  40,  42].  Good  faith,  in  this  connection,  means 
an  honest  belief  in  the  truth  and  fitness  for  the  occasion  of  the 
matter  published,  and  bad  faith  is  the  converse  of  this  ;  namely, 
the  absence  of  such  honest  belief,  or  the  disbelief  in  the  truth  and 
fitness  fur  the  occasion  of  the  matter  published.  As,  then,  the 
existence  of  this  belief  or  of  this  disbelief  determines  whether 
the  publication  was  or  was  not  made  with  a  legal  excuse,  it 
becomes  necessary  to  ascertain  the  belief  of  the  publisher ;  and 
this  involves  the  question  of  his  intent  in  making  the  publica- 
tion.    Not  as  already  explained  [§§  90,  91],  because  the  intent 

970  Tobias  v.  Harland,  4  Wend.  537;    Young  v.  McCrae,  3  Best  &  Sm.  264;  7 
Law  Times  N.  S.  354  ;   Carr  v.  Duckett,  5  Hurl.  &  N.  783. 


238  WHAT   LANGUAGE  IS   ACTIONABLE 

is  essential  to  constitute  a  cause  of  action,  but  because  it  is  a 
link  in  the  chain  of  evidence  of  the  existence  or  the  absence  of 
a  legal  excuse.  Proof  that  the  publisher,  while  pretending  to 
exercise  the  right  of  speaking  or  writing  concerning  a  thing, 
was  in  reality  designing  and  intending  to  injuriously  affect  the 
owner  of  the  thing,  while  it  would  not  of  itself  constitute  bad 
faith,  would  be  a  circumstance  from  which  bad  faith  might  prop- 
erly be  inferred.  Although  the  language  concerns  only  a  thing, 
yet  if  it  appears  to  have  been  published  without  lawful  excuse, 
i.  e.  maliciously  [§  91],  it  will  be  actionable  if  pecuniary  loss 
is  a  necessary  or  natural  and  proximate  consequence  of  the 
publication,  and  hence  we  may  deduce  this  rule,  that  language 
concerning  a  thing  is  actionable  when  published  maliciously, 
i.  e.  without  lawful  excuse  [§  91],  if  it  also  occasions  damage 
to  the  owner  of  the  thing  [§  146]. m 


980  "  I  am  far  from  saying  if  a  man  falsely  and  maliciously  makes  a  statement 
disparaging  an  article  which  another  manufactures  or  vends  (although  in  so  doing 
he  casts  no  imputation  on  his  personal  or  professional  character),  and  thereby 
causes  an  injury  and  special  damage  is  averred,  an  action  might  not  be  main- 
tained."    (Cockburn,  C.  J.,  Young  v.  McCrae,  3  Best  <fe  Sm.  264.) 

In  Swan  v.  Tappan,  5  Cush.  105,  the  words  were  "alleged  to  be  of  and  con- 
cerning the  plaintiff's  books,"  and  nothing  else,  without  any  allegation  of  special 
damage.  The  action  was  held  not  maintainable,  but  the  court  intimated  that  if 
special  damage  had  been  alleged  the  action  could  have  been  sustained.  In  In- 
gram v.  Lawson  (6  Bing.  N.  C.  212 ;  8  Scott,  571),  it  was  held  that  tht  language 
was  concerning  the  plaintiff  personally,  but  that  if  the  language  had  been  con- 
cerning the  plaintiff's  ship,  the  action  could  have  been  maintained  if  special  dam. 
age  had  been  alleged.  And  as  to  words  reflecting  on  a  steamboat,  see  Hamilton 
v.  Walters,  4  Up.  Can.  Q.  B.  Rep.  0.  S.  24,  and  in  Yates'  Pleadings  and  Forms,  p. 
436,  is  the  form  of  a  plea  to  a  declaration  for  slander  of  the  plaintiff's  ship.  In 
Young  v.  McCrae  (3  Best  <fe  Sm.  264),  Cockburn,  J.,  observed:  "I  am  far  from 
saying  there  can  be  no  action  for  a  false  reflection  on  goods.  Such  an  action, 
however,  would  be  more  in  the  class  of  actions  for  false  representations  than 
actions  of  libel."  An  intentional  false  statement  by  defendant  in  regard  to  arti- 
cles manufactured  by  plaintiff,  for  the  purpose  of  preventing  sales,  by  plaintiff,  of 
such  articles,  and  thereby  preventing  such  sales,  constitutes  a  cause  of  action. 
(Snow  v.  Judson,  38  Barb.  212,  citing  Benton  v.  Pratt,  2  Wend.  385 ;  White  v.  Mer- 
ritt,  3  Selden,  352;    Gallagerv.  Brunei,  6  Cowen,  346.) 

A  declaration  foi'  libel  stated  that  the  plaintiff,  before  and  at,  &c,  carried  on  the 
business  of  an  engineer,  and  was  the  inventor  and  registered  proprietor  (under 
2  &  3  Vict.,  c.  17)  of  an  original  design  for  making  impressions  on  metal  articles, 
and  sold  divers  articles  on  which  the  design  was  used.    That  plaintiff,  before  and 


CONCERNING   THINGS.  239 

§  205.  Malice  and  damage  are  both  essential  requisites  to 
sustain  an  action  for  language  concerning  a  thing.  To  these 
requisites  is  usually  added  a  third,  that  the  language  must  be 

at,  <fec,  had  sold  and  had  on  sale  in  the  way  of  his  said  trade,  articles  and  goods 
called  "self-acting  tallow  syphons,  or  lubricators,"  and  that  defendant*published 
a  libel  of  and  concerning  plaintiff,  and  of  and  concerning  him  in  his  said  trade, 
and  of  and  concerning  said  design,  and  plaintiff  as. the  inventor,  &c,  thereof, 
and  manufacturer  of  the  articles  with  the  said  design  thereon,  and  of  and  con- 
cerning the  said  goods  which  he  had  so  sold  and  had  on  sale,  and  plaintiff  as  the 
seller,  as  follows :  "  This  is  to  caution  parties  employing  steam  power,  from  a 
person"  (meaning  plaintiff)  "  offering  what  he  calls  self-acting  tallow  syphons  or 
lubricators  "  (meaning  said  design,  and  meaning  said  goods  and  articles  which  he, 
plaintiff,  had  so  sold  and  had  on  sale  as  aforesaid),  "  stating  that  he  is  the  sole 
inventor,  manufacturer,  and  patentee,  thereby  monopolizing  high  prices  at  the 
expense  of  the  public.  R.  Harlow  (meaning  defendant),  "  takes  this  opportunity 
of  saying,  that  such  a  patent  does  not  exist,  and  that  he  has  to  offer  au  improved 
lubricator,"  <fec.  "Those  who  have  already  adopted  the  lubricators"  (meaning, 
<fec,  same  innuendo  as  before),  "  against  which  R.  H.  would  caution,  will  find  that 
the  tallow  is  wasted  instead  of  being  effectually  employed  as  professed."  No 
direct  averment  connected  the  tallow  syphon  with  the  registered  design  men- 
tioned in  the  first  part  of  the  inducement.  No  special  damage  was  alleged.  Held, 
that  the  words  were  not  a  libel  on  the  plaintiff,  either  generally  or  in  the  way  of 
his  trade,  but  were  only  a  reflection  upon  the  goods  sold  by  him,  which  was  not 
actionable  without  special  damages.     {Evans  v.  Harlow,  5  Q.  B.  624.) 

Publishing  of  a  newspaper  that  it  was  a  vulgar,  ignorant,  and  scurrilous  jour- 
nal, was  held  not  actionable,  but  it  was  held  actionable  to  say  that  it  was  low  in 
circulation — such  a  charge  being  calculated  necessarily  to  produce  damage. 
(Heriot  v.  Stuart,  1  Esp.  Cas.  437.) 

Plaintiff  was  possessed  of  certain  shares  in  a  silver  mine,  touching  which 
shares  certain  claimants  had  filed  a  bill  in  chancery,  to  which  plaintiff  had  demur- 
red. Held,  that,  without  alleging  special  damage,  plaintiff  could  not  sue  the  de- 
fendant for  falsely  publishing  that  the  demurrer  had  been  overruled ;  that  the 
prayer  of  the  petition  (for  the  appointment  of  a  receiver)  had  been  granted,  and 
that  persons  duly  authorized  had  arrived  at  the  mine.  Held,  also,  that  an  allega- 
tion that  the- plaintiff  was  injured  in  his  rights,  that  the  shares  were  lessened  in 
value,  that  divers  persons  believed  that  he  had  no  right  to  the  shares,  that  the 
mine  could  not  be  worked,  and  that  he  had  beeiuprevented  from  disposing  of  his 
said  shares,  and  from  working  the  mine  in  so  ample  a  manner  as  he  otherwise 
would  have  done,  and  was  prevented  from  gaining  divers  profits  which  would 
otherwise  have  accrued  to  him,  was  not  a  sufficient  special  damage.  (Malachy  v. 
Soper,  3  Bing.  N.  C.  371;  3  Scott,  723.) 

In  an  action  for  misdescribing  the  plaintiff's  vessel  in  a  publication  of  the  de- 
fendants, called  "  The  Shipping  Register,"  it  appearing  that  the  plaintiffs  had 
requested  the  surveyor  of  the  defendants  to  examine  the  ship,  held  that  they  could 
maintain  no  action  against  them  for  what  they  did  in  consequence  of  his  report, 


240  WHAT   LANGUAGE   IS  ACTIONABLE 

false.  It  is  true  the  language  must  be  false,  not  because  it  is 
an  additional  requisite  to  malice  and  damage,  but  because  it  is 
comprised  in  the  requirement  of  damage.  Language  concern- 
ing a  thing  which  is  not  false,  i.  e.  which  is  true,  cannot,  as  a 
necessary  or  natural  consequence,  occasion  pecuniary  loss. 
Language  concerning  a  thing  is  prima  facie  or  presumptively 
lawful ;  and,  therefore,  with  regard  to  it,  there  is  neither  any 
assumption  or  presumption  of  its  being  untrue  or  false,  nor  of 
its  occasioning  damage,  nor  of  its  being  without  lawful  excuse 
[malicious]  [§  130]  ;  and  therefore  it  is,  that  one  complaining  of 
an  injury  by  reason  of  language  concerning  a  thing,  in  order 
to  establish  his  right  to  maintain  an  action,  has  to  allege  and 
prove  that  the  publication  was  made  without  lawful  excuse 
[maliciously],  that  the  language  was  untrue,  and  that  he  has 
sustained  pecuniary  loss  as  a  necessary  or  as  a  natural  and 
proximate  consequence  of  the  publication. 

§  206.  What  is  ordinarily  designated  slander  of  title,  is 
comprised  within  the  division  of  language  concerning  things. 
Slander  of  title  is  publishing  language,  not  of  the  person,  but 
of  his  right  or  title  to  something.  All  the  preceding  observa- 
tions upon  language  concerning  things  apply  to  actions  for 
slander  of  title ;  thus,  in  an  action  for  slander  of  title,  no  dis- 
tinction is  made  with  regard  to  the  medium  of  the  publication, 
as  whether  oral  or  written;981  and  to  sustain  the  action,  the 
publication  must  be  made  maliciously  ;  the  language  must  be 
false,  and  must  occasion,  as  a  natural  and  proximate  conse- 


the  remedy  was  against  him  if  he  made  a  false  report.  {Kerr  v.  Shedden,  4  C.  <fe 
P.  528.) 

The  foregoing  cases  seem  to  imply  that  the  fact  of  loss,  or  special  damage,  as 
it  is  termed,  will  render  actionable  language  concerning  a  thing;  we  state  it  other- 
wise in  the  text,  and  we  suppose  it  to  be  otherwise.  In  Carr  v.  Hood,  1  Camp. 
355,  n.,  Lord  Ellenborough,  speaking  of  language  concerning  a  thing  (a  book), 
says :  "  I  speak  of  fair  and  candid  criticism  ;  this  every  one  has  the  right  to  pub- 
lish, although  the  author  may  suffer  Iofs  from  it.  Such  a  loss  the  law  does  not 
consider  as  an  injury,  because  it  is  a  loss  which  the  party  ought  to  sustain." 

This  subject  will  be  further  considered  under  the  head  of  Defences. 

9B1  Malachy  v.  Soper,  3  Bing.  N.  C.  371  ;  3  Scott,  723. 


SLANDER  OF  TITLE.  241 

quence,  a  pecuniary  loss  to  the  plaintiff.982  Where  the  assignee 
of  a  lease  which  contained  a  proviso  for  re-entry  in  case  the 
rent  reserved  by  it  was  in  arrear,  exposed  the  lease  for  sale, 
there  being  at  the  time  rent  in  arrear,  the  lessee  appeared  at 
the  time  and  place  appointed  for  the  sale,  and  announced  that 
such  assignee  had  no  title  and  could  not  make  a  title,  in  conse- 
quence of  which  announcement,  persons  who  came  to  bid  for 
the  lease  refused  to  bid  ;  the  lessee  afterwards  offered  £100  for 
the  lease,  which  was  refused ;  he  brought  ejectment  and  recov- 
ered the  possession  of  the  premises.  Intermediate  the  at- 
tempted sale  and  the  recovery  in  the  ejectment,  the  assignee 
sued  the  lessor  for  slander  of  title  ;  the  court  on  the  trial  was 
of  opinion  that  under  the  circumstances  the  plaintiff  could  not 
maintain. the  action,  but  left  the  question  of  malice  in  making 
the  publication  to  the  jury,  and  they  found  that  it  was  mali- 
cious. The  court,  however,  directed  a  nonsuit.983  It  is  sup- 
posed that  the  nonsuit  was  set  aside,  and  that  the  plaintiff  had 
judgment  on  the  ground  that  the  question  of  malice  having 
been  left  to  the  jury  as  a  question  of  fact,  and  found  against  the 
defendant,  the  court  could  not  disregard  the  finding  and  say  there 


982  Kendall  v.  Stone,  1  Selden,  14,  rev'g  S.  C.  2  Sandf.  269  ;  Like  v.  McKinstry, 
41  Barb.  186.  There  must  be  malice  which  the  plaintiff  must  prove.  {Smithy. 
Spooner,  3  Taunt.  246 ;  Hill  v.  Ward,  13  Ala.  310.)  Malice  is  not  to  be  pre- 
sumed. (McBaniel  v.  Baca,  2  Cal.  326.)  There  must  be  malice  either  express 
or  implied.  {Hargrave  v.  Le  Breton,  4  Burr.  2422.)  But  all  malice  is  implied.  (§ 
8*7,  ante.)  To  support  an  action  for  slander  of  title,  special  damages  must  be 
shown.  {Bailey  v.  Dean,  5  Barb.  297  ;  Linden  v.  Graham,  1  Duer,  670;  Watson  v. 
Reynolds,  1  Mo.  &  Malk  1,  and  note  992,  post.)  There  must,  too,  be  a  want  of  proba- 
ble cause ;  and,  if  what  the  defendant  said  or  did,  was  in  pursuance  of  a  claim  of 
title,  for  which  he  has  some  ground,  he  is  not  responsible.  (Bailey  v.  Bean,  5  Barb. 
297.)  The  existence  of  probable  cause  is  no  answer  to  the  action,  nor  does  the 
want  of  it  necessarily  prove  malice.  {Kendall  v.  Stone,  2  Sand.  269.)  Mere  asser- 
tions, threats,  and  designs,  made  against  a  grantee  of  real  estate,  and  against  the 
party  in  possession,  cannot  be  deemed  a  cloud  upon  the  title.  If  the  owner  is 
injured  by  any  such  false  claims  or  representations,  he  can  probably  maintain  an 
action  for  damages.    (Be  Madison  Ave.  Bapt.  Church,  26  How.  Pra.  R.  72.) 

UB3  Smith  v.  Spooner,  3  Taunt.  246.     The  attorney  of  a  party  who  would  be 
justified  in  making  objections  to  a  title,  is  not  liable  to  an  action,  if  he  bond  fide, 
though  without  authority,  state  only  what  his  principal  might  have  stated.  ( Wat- 
son v.  Reynolds,  1  M.  <fe  Malk.  1.) 
16 


242  WHAT   LANGUAGE   IS   ACTIONABLE. 

was  no  malice.984  The  defendant,  a  surveyor  appointed  under 
Stat.  7  and  8  Yict.,  ch.  84,  attended  a  sale  of  some  unfinished 
houses,  of  which  the  plaintiff  was  the  lessee  for  a  term  of  years. 
The  roadway  to  these  houses,  although  of  sufficient  width 
according  to  the  above  statute,  was  at  that  time  in  an 
unpaved  state  and  unfit  for  traffic.  At  such  sale  the  defendant 
made  the  following  announcement :  "  I  shall  not  allow  the 
houses  to  be  finished  until  the  roads  are  made  good.  I  have  no 
power  to  compel  any  one  to  make  the  roads,  but  I  have  power 
to  stop  the  buildings  until  the  roads  are  made.*'  Some  time 
after  such  sale,  the  defendant,  on  being  asked  why  he  pursued 
Mr.  Pater,  replied,  "  I  pursue  Mr.  Pater  because  I  am  not  able 
to  pursue  Mr.  Agar,  the  ground  landlord."  Upon  this  state  of 
facts,  held,  that  there  was  no  evidence  to  support  the  allegation 
of  malice.985  Where  one  mortgaged  his  estate,  and  afterwards 
committed  an  act  of  bankruptcy,  subsequently  the  property 
was  offered  for  sale  by  the  assignee  of  the  mortgagor,  the  de- 
fendant, the  attorney  of  the  mortgagee,  stopped  the  sale  by 
stating  that  the  mortgagor  had  committed  an  act  of  bank- 
ruptcy, and  which  was  untrue,  that  a  docket  had  been  made 
out  for  a  commission,  in  an  action  for  losing  the  sale,  held  that 
although  the  defendant  went  beyond  the  truth,  there  was  no 
material  variance  and  no  difference  made  with  respect  to  plain- 
tiff's title,  and  there  being  no  proof  of  malice,  the  action  could 
not  be  maintained.986  The  plaintiff  being  about  to  sell  an  es- 
tate, the  defendant  wrote  a  letter  to  the  intending  purchaser, 
imputing  insanity  to  Y.,  the  person  from  whom  the  plaintiff 
derived  his  title,  and  stating  that  the  title  would  be  disputed  ;  in 
consequence  of  which  letter  the  proposed  purchaser  refused  to 
purchase.  It  appeared  on  the  trial  that  Y.  had  married  a  sis- 
ter of  the  defendant,  and  that  a  term  of  years  in  the  estate  in 
question  was  vested  in  the  defendant  as  trustee,  to  secure  a 
jointure  to  Y.'s  wife.  The  judge  on  the  trial  ruled  that  if 
defendant  believed,  upon  such  grounds  as  would  jxrsuade  a  man 

9t4  1  Starkie  on  Slander,  318. 

9bb  Pater  v.  Baker,  11  Jurist,  370 ;  16  Law  Jour.  R.  124  C.  P. ;  3  C.  B.  831. 

8B6  Hargrave  v.  Le  Breton,  Burr.  242:>. 


SLANDER  OF  TITLE.  243 

of  sound  sense  and  knowledge  of  business,  that  Y.  was  insane, 
the  defendant  would  be  entitled  to  a  verdict.  A  verdict  was 
taken  for  the  plaintiff;  the  court  above,  on  granting  a  new 
trial,  condemned  this  ruling  as  unsound,  and  stated,  "  If  what 
the  defendant  wrote  was  most  untrue,  but  nevertheless  he  be- 
lieved it,  if  he  was  acting  under  the  most  vicious  of  judgments, 
yet  if  he  exercised  that  judgment  bond  fide,  it  was  a  sufficient 
justification.  *  *  The  jury  must  arrive  at  their  conclusion 
through  the  medium  of  malice  or  no  malice  in  the  defendant. 
The  bond  fides  of  the  publication,  and  not  what  a  man  of 
rational  understanding  would  have  done,  is  the  question  to  be 
canvassed."  987  The  defendant  who  was  the  ground  landlord  and 
remainder-man  of  leasehold  premises,  of  which  the  plaintiff 
was  assignee  of  the  lessee,  stated  at  an  auction  at  which  the 
lease  and  assignment  were  put  up  for  sale,  that  all  the  cove- 
nants in  the  lease  had  been  broken,  that  he  had  commenced 
ejectment  to  recover  the  possession  of  the  premises,  and  that  it 
would  cost  £70  to  repair  the  premises,  in  consequence  of  which 
the  lease  brought  less  than  it  otherwise  would.  On  the  trial 
it  appeared  that  some  only  of  the  covenants  in  the  lease  had 
been  broken,  and  the  judge  directed  the  jury,  that  the  only 
question  was  whether  what  the  defendant  stated  was  untrue, 
and  if  it  was,  the  plaintiff  was  entitled  to  recover.  On  motion 
for  a  new  trial,  the  ruling  at  the  trial  was  held  erroneous,  and 
that  the  proper  question  was,  whether  so  much  of  the  defend- 
ant's statement  as  was  false  was  also  malicious.988  An  order 
having  been  made  by  the  Court  of  Chancery,  requiring  G.,  the 
plaintiff,  to  pay  a  sum  of  money,  the  defendant  registered  the 
order  pursuant  to  Statute  1  and  2  Vict.,  ch.  110,  whereby  it 
became  a  lien  on  the  real  estate  of  the  plaintiff,  and  prevented 
him  raising,  by  a  sale  or  mortgage  of  his  estate,  the  money 
ordered  to  be  paid,  held  the  action  could  not  be  maintained, 
there  being  no  proof  of  malice.989  And  where  the  defendant 
published  a  notice  cautioning  all  persons  not  to  purchase  of  the 

9"  Pitt  v.  Donovan,  1  M.  &  Sel.  639. 
6Bb  Brook  v.  Bawl,  4  Exch.  521. 

*b*  Oibbs  v.  Pike,  1  Dowl.  N.  S.  409 ;  6  Jur.  465. 


244  WHAT    LANGUAGE   IS   ACTIONABLE. 

plaintiff  a  certain  tract  of  land,  alleging  that  the  plaintiff  ob- 
tained the  title  to  said  land  from  the  defendant  by  means  of 
false  pretences,  and  that  the  .defendant  intended  to  institute 
a  suit  to  annul  plaintiff's  pretended  title,  was  held  not  on  its 
face  to  show  malice.990  Some  of  the  old  cases  hold  that  one 
claiming  title  in  himself  cannot  give  a  right  of  action,  that  to 
render  the  charge  actionable  it  must  assert  a  title  in  a  stranger.991 
This  distinction  no  longer  prevails.  So  formerly  it  seems  to 
have  been  supposed  that  the  only  ground  of  damage  was  a  loss 
of  the  sale  or  leasing  of  the  property,  the  title  to  which  was 
assailed  ;  it  is,  however,  well  settled  at  this  day  that  any  dam- 
age which  is  a  natural  and  proximate  consequence  of  the  lan- 
guage will  support  an  action.992  The  action  cannot  be  main- 
tained unless  there  is  special  damage.993  Where,  prior  to  the 
publication  of  the  language  complained  against,  the  plaintiff" 
and  one  W.  had  contracted  for  the  sale  of  a  lot  of  land — in  con- 
sequence of  the  publication,  W.  wished  to  be  released  from  his 
contract,  and  plaintiff  released  him — plaintiff"  sued,  charging 
the  loss  of  a  sale  to  W.  as  the  special  damage,  held  that  the 
rescinding  of  the  contract  with  W.  was  not  special  damage,  and 
that  no  action  could  be  maintained.994  Perhaps  plaintiff"  being 
prevented  from  raising  money  by  mortgage  on  his  lands,  is  such 
damage  as  may  entitle  him  to  maintain  an  action.995  "Where 
the  alleged  slander  consists  in  the  defendant  claiming  title  in 
himself,  the  fact  of  his  not  having  a  title  is  not  per  se  evidence 

990  McDaniel  v.  Baca,  2  Cal.  326. 

991  Jenkins  Cent.  247;  Pennyman  v.  Rabanks,  Cro.  Eliz.  427  ;  S.  C,  Mo.  410  ; 
Lovett  v.  Welter,  1  Rolle  R.  409  ;  Gerard  v.  Dickinson,  4  Rep.  18  ;  Sneade  v.  Bad- 
ley,  3  Buls.  75 ;  S.  C,  1  Rolle  R.  244 ;  and  see  Vin.  Abr.  Act.  for  Words,  L.  (B.  2), 
8 ;  Anon.  Sty.  414. 

992  Malachy  v.  Sope.r,  3  Bing.  N.  C.  371  ;  3  Sc.  723 ;  Tasburgh  v.  Day,  Cro. 
Tac.  485. 

993  Watson  v.  Reynolds,  1  Mo.  &  Malk.  1 ;  Lowe  v.  Harwood,  Sir  W.  Jones, 
196 ;  S.  C,  Cro.  Jac.  140;  Pal.  529  ;  Cane  v.  Goulding,  Sty.  169  ;  Sneade  v.  Bad- 
ley,  3  Bulst.  75  ;  S.  C,  1  Rolle  R.  244 ;  Brook  v.  Rawle,  4  Exch.  521 ;  Pater  v. 
Baker,  3  C.  B.  831,  and  ante,  in  note  982. 

994  Kendall  v.  Stone,  5  N.  Y.  14,  reVg  S.  C,  2  Sandf.  269. 

995  Linden  v.  Graham,  1  Duer,  670.  In  that  case  the  action  was  not  main- 
tained, because  the  damage  was  not  stated  with  sufficient  certainty,  and  a>  to 
how  the  damage  must  be  alleged,  see  Malachy  v.  Soper,  3  Bing.  N.  C.  371 ;  Tilk  v. 


SLANDER  OF  TITLE.  245 

of  malice.996  But  the  defendant  having  no  title  is  a  circum- 
stance from  which  malice  may  be  inferred.997  Where  the  de- 
fendant in  fact  made  the  publication  under  the  advice  of  coun- 
sel, but  did  not  at  the  time  of  making  the  publication,  state 
that  he  was  acting  under  such  advice,  held  that  the.  fact  of  his 
acting  under  such  advice  did  not  per  se  shield  him  from  an  ac- 
tioft;998  but  it  was  a  circumstance  to  be  considered  in  deter- 
mining whether  or  not  the  publication  was  made  maliciously.999 

§  206.  The  action  for  slander  of  title  is  not  restricted  to 
language  affecting  real  property,  it  lies  for  slander  of  title  to 
personal  property ;  thus,  where  at  a  public  sale  of  rye  the  de- 
fendant attended,  and  in  the  presence  and  hearing  of  the  per- 
sons there  assembled,  said :  "  I  forbid  selling  the  rye ;  it  is 
mine,"  in  consequence  of  which  persons  were  deterred  from 
bidding,  and  the  rye  sold  for  less  than  it  would  otherwise  have 
done,  it  was  held  an  action  could  be  maintained.1000 

§  207.  As  one  cannot  cloak  his  wrong-doing  by  the  use  of 
ironical  language  [§  133],  so  neither  can  one  with  impunity  at- 
tack a  person  by  pretending  to  attack  a  thing  ;  for  although  the 
words  may  be  professedly  concerning  a  thing,  yet  if  they  are  in 
reality  concerning  a  person,  they  will  be  judged  by  the  rules 
governing  language  concerning  the  person.1001    Whether  certain 

Parsons,  2  Car.  &  P.  201 ;  Ifelegal  v.  Hiyhley,  8  Car.  &  P.  444.  A  general  allega- 
tion that  the  plaintiff's  property  has  been  lessened  in  value,  or  that  people  be- 
lieve he  has  no  title,  or  that  he  has  been  prevented  from  selling,  is  not  sufficient. 

90C  Hill  v.  Ward,  13  Ala.  310. 

997  McDaniel  v.  Baca,  2  Cal.  326. 

99B  Like  v.  McKinstry,  41  Barb.  186. 

999  Hill  v.  Ward,  13  Ala.  310. 

1000  Like  v.  McKinstry,  41  Barb.  186;  and  see  Green  v.  Button,  1  Gale,  349;  2 
CM.  <fe  R.  707;  1  Tyrw.  &  G.  118;  Jfalachyv.  Soper,  3  Bing.  N.C.  371 ;  3  Scott, 
723  ;  Carr  v.  Duckctt,  5  Hurl.  <fe  N.,  783  ;  Hill  v.  Ward,  13  Ala.  310;  and  slander 
of  title  to  a  slave.    Pines  v.  Wythe,  71. 

1001  Carr  v.  Hood,  1  Camp.  355,  n.  In  Tobias  v.  Harland,  4  Wend.  537,  the 
court  said  that  words  disparaging  an  article  made  or  dealt  in  by  the  plaintiff, 
were  not  actionable  unless  they  imputed  deceit  or  malpractice  in  the  making  or 
vending,  or  a  want  of  skill  in  the  manufacturing.  In  reference  to  this  dictum  it 
must  be  observed  that  words  imputing  to  plaintiff  deceit  or  Want  of  skill,  do  not 
concern  the  thing  but  the  person,  and  are  therefore  within  the  rules  relating  to 
personal  defamation. 


246  WHAT   LANGUAGE   IS    ACTIONABLE. 

language  concerns  a  person  or  a  thing  is  sometimes  a  question 
difficult  to  determine ;  but  it  is  always  a  question  of  fact,  and 
like  every  other  question  of  fact,  to  be  determined  sometimes 
by  the  court  and  sometimes  by  the  jury  [§  69].  The  language 
which  on  its  face  concerns  a  person,  may  indirectly  affect  a  per- 
son other  than  the  person  whom  on  its  face  the  language  con- 
cerns. It  may  affect  one  as  concerning  him  personally,  «and 
affect  another  as  concerning  a  thing.  The  language  heretofore 
referred  to  [§  201]  concerning  an  actress,  whereby  she  refused 
to  perform  her  engagement,  was  as  to  her  concerning,  the  per- 
son, but  as  to  her  employer  it  was  concerning  a  thing,  namely, 
his  right  of  property  in  or  to  her  services. 


CHAPTER    IX. 


DEFENCES. 

Privileged  p>ublications  generally.  Repetition.  Truth.  Legisla- 
tive proceedings  and  reports  thereof.  Judicial  proceedings. 
Parties  to  proceedings.  Counsel.  Witnesses.  Judges.  Reports 
of  judicial  proceedings.  Quasi  judicial  proceedings.  Church 
discipline.  Seeking  advice  or  redress  other  than  judicially . 
.  Giving  information  or  ad/vice  generally.  Master  and  ser- 
vant. Candidates  for  office  or  employment.  Insanity. 
Drunkenness.  Infancy.  Accord  and  satisfaction.  Pre- 
vious recovery.    Apology.    Freedom  of  the  Press.    Criticism. 

§  208.  The  actionable  language  referred  to  in  the  preced- 
ing chapter  is  to  be  understood  as  prima  facie  actionable  only, 
that  is  to  say,  it  is  actionable  when  published  without  any 
legal  excuse  for  making  the  publication.1002  We  have,  in  pre- 
vious chapters  [§§  64,  65],  referred  to  the  kinds  of  legal  excuses 
and  the  distinction  between  legal  excuses  and  defences,  and 
[§  50]  stated  that  it  is  the  occasion  which  determines  of  every 
act,  and  consequently  of  the  act  of  publication,  whether  or  not 
it  admits  of  a  legal  excuse  or  defence.  When  the  occasion  really 
or  apparently  furnishes  a  legal  excuse  for  making  the  publi- 
cation, in  that  event  the  publication  is  termed  a  privileged  pub- 
lication [§  120],  or  a  privileged  communication.       Privileged 

1002  rj0  evei.y  libel  there  may  be  an  implied  justification  from  the  occasion. 
( Weatherstone  v.  Haiokins,  1  T.  R.  110.)  "Whether  the  circumstances  under 
which  a  communication  is  made  constitute  it  a  privileged  communication  or  not 
is  a  question  which  the  court  has  assumed  the  jurisdiction  to  decide.  But  it  is 
more  a  question  of  fact  in  each  particular  case  than  a  question  of  law.  The  court 
is  to  consider  whether  the  occasion  is  such  as  to  make  the  communication  one  of 
a  privileged  character.  That  being  so,  it  by  no  means  follows  that  we  can  de- 
rive much  aid  in  one  case  from  another,  the  circumstances  of  which  are  not  ex- 
actly the  same."  Maule,  J.,  Wenman  v.  Ash,  13  C.  B.  836;  and  see  Darby  v. 
Ouselcy,  36  Eng.  Law  and  Eq.  R.  518. 


248  DEFENCES. 

publication  is  the  better  term,  because  the  phrase  privileged 
communication  has  another  meaning,  namely,  a  communica- 
tion made  under  circumstances  which  either  entitles  or  obliges 
the  person  to  whom  the  communication  is  made  to  withhold 
the  disclosure  of  the  matter  communicated.1003  The  term  priv- 
ileged communication,  when  hereafter  employed,  will  be  as.  a 
synonym  for  privileged  publication. 

§  209.  Privileged  publications  are  usually  divided  into  abso- 
lutely privileged  and  conditionally  privileged.1004  By  an  abso- 
lutely privileged  publication  is  not  to  be  understood  a  publica- 
tion for  which  the  publisher  is  in  no  wise  responsible,  but  it 
means  a  publication  in  respect  of  which,  by  reason  of  the  occa- 
sion upon  which  it  is  made,  no  remedy  can  be  had  in  a  civil  action 
of  slander  or  libel.  A  conditionally  privileged  publication  is  a 
publication  made  on  an  occasion  which  furnishes  &  prima  facie 
legal  excuse  for  the  making  of  it ;  and  which  is  privileged  unless 
some  additional  fact  is  shown  which  so  alters  the  character  of  the 
occasion  as  to  prevent  it  furnishing  a  legal  excuse.  The  addi- 
tional fact  which  in  the  majority  of  cases  is  required  to  be 
shown*  to  destroy  this  conditional  privilege  is  malice,  meaning 

1003  As  to  the  distinction  between  communications  privileged  from  being  given 
in  evidence  and  privileged  from  being  a  cause  of  action  for  slander  or  libel,  see 
remarks  of  Bushe,  C.  J.,  Black  v.  Holmes,  1  Fox  <fc  Sm.  35. 

1004  Perkins  v.  Mitchell,  31  Barb.  467;  Warner  v.  Paine,  2  Sandf.  198.  Priv- 
ileged communications  are  of  four  kinds,  to  wit :  where  the  publisher  of  the 
alleged  slander  acted  in  good  faith  in  the  discharge  of  a  public  or  private 
duty,  legal  or  moral,  or  in  the  prosecution  of  his  own  rights  or  interests  ;  any- 
thing said  or  written  by  a  master  concerning  the  character  of  a  servant  who  has 
been  in  his  employment;  words  used  in  the  course  of  a  legal  or  judicial  proceed- 
ing ;  and  publications  didy  made  in  the  ordinary  mode  of  parliamentary  pro- 
ceedings. (White  v.  Nichols,  3  How.  U.  S.  Rep.  266.)  Absolutely  privileged 
communications  are  of  two  kinds:  (1)  proceedings  in  courts  of  justice  ;  (2)  memo- 
rials and  petitions  to  the  legislature.  (Cook  v.  Mil,  3  Sandf.  341.)  Courts  are 
not  inclined  to  extend  the  doctrine  of  absolutely  privileged  communications.  (Id.) 
A  conditionally  privileged  publication  must  be  made  "  in  good  faith,  believing 
the  statements  it  contains  to  be  true,  or  having  probable  cause  to  believe  them 
to  be  true."  If  there  was  no  probable  cause  for  the  communication,  the  law  im- 
plies that  it  was  made  with  malice.  If,  however,  it  appears  that  there  was  prob- 
able cause,  the  communication  is  privileged,  no  matter  how  much  actual  malice 
dictated  it.     (lb.) 


PRIVILEGED  PUBLICATIONS.  240 

bad  intent,  in  the  publisher,  i.  e.  an  intent  to  injure  the  person 
whom  or  whose  affairs  the  language  concerns,  and  therefore  by 
a  conditionally  privileged  publication  is  very  generally  under- 
stood one  which  rebuts  the  presumption  of  malice,  meaning 
absence  of  legal  excuse,  which  in  cases  where  no  legal  excuse  is 
apparent,  arises  from  the  mere  fact  of  publication.1005  And 
therefore  it  has  been  said  :  "  Instead  of  the  expression  '  privi- 
leged communication,'  it  is  more  correct  to  say  that  the  com- 
munication was  made  on  an  occasion  which  rebuts  the  pre- 
sumption of  malice."100^  The  proper  meaning  of  a  privileged 
communication  is  only  this :  that  the  occasion  on  which  the 
communication  was  made  rebuts  the  inference  prima  facie 
arising  from  a  statement  prejudicial  to  the  character  of  the 
plaintiff,  and  puts  it  upon  him  to  prove  that  there  was  malice 
in  fact,  that  the  defendant  was  actuated  by  motives  of  personal 
spite  or  ill-will  independent  of  the  occasion  on  which  the  com- 
munication was  made.1007  The  description  of  cases  recognized 
as  privileged  communications  must  be  understood  as  exceptions 
to  the  rule  [that  every  defamatory  publication  implies  malice], 

1005  «  jn  generai  an  action  lies  for  the  malicious  publication  of  statements 
which  are  false  in  fact  and  injurious  to  the  character  of  another  (within  the  well 
known  limits  as  to  verbal  slander),  and  the  law  considers  such  publication  as 
malicious  unless  it  is  fairly  made  by  a  person  in  the  discharge  of  some  public  or 
private  duty,  whether  legal  or  moral,  or  in  the  conduct  of  his  [the  publisher's] 
own  affairs,  in  matters  where  his  interest  is  concerned.  In  such  cases  the  occa- 
sion prevents  the  inference  of  malice  which  the  law  draws  from  unauthorized 
communications,  and  affords  a  qualified  defence  depending  upon  the  absence  of 
actual  malice.  If  fairly  warranted  by  any  reasonable  occasion  or  exigency,  and 
honestly  made,  such  communications  are  protected  for  the  common  convenience 
and  welfare  of  society,  and  the  law  has  not  restricted  the  right  to  make  them 
within  any  narrow  limits."  (Parke,  B.,  Toogood  v.  Spyring,  1  Cr.  M.  &  R.  181 ; 
and  to  the  like  effect  see  Coxhead  v.  Richards,  2  C.  B.  569;  Blackham  v.  Pugh,  2 
C.  B.  611 ;  Bennett  v.  Deacon,  2  C.  B.  628;  Taylor  v.  Hawkins,  16  Q.  B.  308; 
Kine  v.  Bewail,  3  M.  &.  W.  297;  Swan  v.  Tappan,  5  Cush.  104.) 

1006  Erie,  J.,  Gilpin  v.  Fowler,  9  Ex.  615. 

1007  Wright  v.  Woodgate,  2  Cr.  M.  &  R.  673.  Where  the  writer  is  acting  on 
any  duty,  legal  or  moral,  towards  the  person  to  whom  he  writes,  or  where  he  has 
by  his  situation  to  protect  the  interest  of  that  person,  that  which  he  writes  un- 
der such  circumstances  is  a  privileged  communication,  and  no  action  will  lie  for 
what  is  thus  written,  unless  the  writer  be  actuated  by  malice.  {Cockayne  v. 
Hodgkisson,  5  Car.  <fe  P.  543.) 


250  DEFENCES. 

and  as  being  founded  upon  some  apparently  recognized  obliga- 
tion or  motive,  legal,  moral,  or  social,  which  may  fairly  be  pre- 
sumed to  have  led  to  the  publication,  and  therefore,  2>rimd 
facie  relieves  it  from  the  just  implication  from  which  the  gen- 
eral rule  of  the  law  is  deduced.  The  rule  of  evidence  as  to 
such  cases  is  accordingly  so  far  changed  as  to  impose  it  on  the 
plaintiff  to  remove  those  presumptions  flowing  from  the  seeming 
obligations  and  situations  of  the  parties,  and  to  require  of  him 
to  bring  home  to  the  defendant  the  existence  of  malice  as  the 
true  motive  of  his  conduct.1008  And  it  has  been  said :  Few 
rules  of  law  are  of  greater  practical  importance  than  that 
which  requires  proof  of  express  malice  where  the  words  are 
spoken  under  circumstances  which  make  the  communication 
privileged.  The  malice  required  to  deprive  communications  of 
this  sort  of  the  protection  arising  "out  of  the  occasion  of  the 
speaking  of  the  words,  must  be  such  as  to  induce  the  court,  or 
any  reasonable  person,  to  draw  the  inference  that  the  occasion 
has  been  taken  advantage  of  to  give  utterance  to  an  unfounded 
charge.1009  Privileged  communications  comprehend  all  state- 
ments made  bond  fide  in  performance  of  a  duty,  or  with  a  fair 
and  reasonable  purpose  of  protecting  the  interest  of  the  person 
making  them,1010  or  the  interest  of  the  person  to  whom  they  are 
made.1011  A  communication  made  bond  fide  upon  any  subject- 
matter  in  which  the  party  communicating  has  an  interest,  or  in 
reference  to  which  he  has  a  duty,  is  privileged  if  made  to  a  per- 
son having  a  corresponding  interest  or  duty,  although  it  con- 
tain criminatory  matter,  which  without  this  privilege,  would 
be  slanderous  and  actionable.1012  We  venture  with  much  hesi- 
tation to  suggest  the  rule  as  to  privilege  to  be :  one  may  pub- 
lish by  speech  or  writing  whatever  he  may  honestly  believe  is 
essential  to  the  protection  of  his  own  rights,  or  to  the  rights  of 
another,  provided  the  publication  be  confined  solely  to  those 


1008 
1009 


Wliite  v.  Nicholls,  3  How.  U.  S.  Rep.  266. 
Manly  v.   Witt,  18  C.  B.  544. 

1010  Somerville  v.  Hawkins,  3  Eng.  Law  and  Eq.  R.  503 ;   10  C.  B.  583 ;   15  Jur. 
450. 

1011  Pattison  v.  Jones,  8  B.  &  C.  578. 

1012  Harrison  v.  Bush,  5  El.  <fe  Blac.  344. 


REPETITION.  251 

persons  whom  the  publisher  honestly  believes  can  assist  him  in 
the  protection  of  his  own  rights,  or  to  those  whom  he  honestly 
believes  a  knowledge  of  the  matter  published  will  enable  to 
assert  their  rights  or  to  protect  their  rights  from  invasion. 

§  210.  It  will  be  convenient,  prior  to  considering  the  sev- 
eral occasions  which  give  rise  to  privileged  publications,  to  dis- 
cuss the  supposed  privilege  under  certain  conditions  of  repeat- 
ing defamatory  matter.  It  already  appears  that  the  publica- 
tion of  defamatory  matter  cannot  be  justified  on  the  ground 
that  it  is  but  a  repetition  [§  114]  .1013      For  a  long  period,  how- 

1013  One  who  repeats  a  slander  is  responsible.  Evans  v.  Smith,  5  Monr.  363 ; 
Kenney  v.  McLaughlin,  5  Gray,  3  ;  Clarke  v.  Munsell,  6  Mete,  373 ;  Hampton  v.  Wil- 
son, 4k  Dev.  468.  It. is  no  defence  to  an  action  for  defamatory  matter  published 
in  a  newspaper  that  it  was  the  communication  of  a  correspondent,  or  copied  from 
another  newspaper.  Talbutt  v.  Clark,  2  Moo.  <fe  R.  312;  Sanfordv.  Bennett,  24 
N.  Y.  20 ;  Miles  v.  Spencer,  1  Holt  R.  533 ;  Parker  v.  McQueen,  8  B.  Monr.  16 ; 
or  that  it  had  been  previously  published,  and  the  plaintiff  had  failed  to  prosecute 
the  previous  publisher;  Rex  v.  Holt,  5  T.  R.  436;  Ctirtis  v.  Mussey,  6  Gray 
(Mass.),  261 ;  see  Poppenheim  v.  Wilkes,  1  Strobhart,  275;  or  that  when  the 
charge  was  made  the  plaintiff  did  not  deny  it.  Fuller  v.  Dean,  31  Ala.  654.  In 
Reg.  v.  Newman,  18  E.  L.  &  E.  R.  122,  the  defendant  on  the  trial  offered  to  put. 
in  evidence  the  Dublin  Review,  of  a  date  prior  to  the  alleged  libel,  in  order  to 
show  that  the  charge  contained  in  the  libel  had  been  published  a  considerable 
time  before  the  alleged  libel,  and  that  the  publisher  had  not  been  prosecuted ;  this 
evidence  was  rejected,  and  the  rejection  was  made  one  of  the  grounds  for  a  mo- 
tion for  a  new  trial,  and  per  Coleridge,  J.,  "  It  has  been  said  that  probably  the  libel 
was  true  because  another  libel  was  published  by  another  person.  Upon  that 
principle  it  might  have  been  argued  that  the  statements  in  the  Dublin  Review 
were  true  because  they  had  previously  appeared  in  some  other  publication.  Such 
evidence  is  far  too  vague  to  be  received.  The  fallacy  of  the  learned  counsel's  ar- 
gument consists  in  the  prosecutor's  alleged  submission  to  the  previous  libel.  The 
utmost  that  can  be  said  is  that  he  did  not  prosecute  the  parties.  That  might 
have  arisen  from  various  considerations.  He  might  not  be  able  to  fix  on  a  par- 
ticular person,  or  upon  any  one  of  character,  or  he  might  be  prevented  from  pro- 
ceeding by  his  poverty,  or  by  a  variety  of  other  circumstances.  Besides,  it  is 
not  always  considered  expedient  to  institute  proceedings  in  respect  to  the  first 
charge."  Nor  is  it  any  justification  that  prior  to  the  publication  complained 
against,  there  was  a  rumor  or  report  current  and  generally  believed  that  the 
plaintiff  was  guilty  of  the  offence  imputed.  Hampton  v.  Wilson,  4  Dev.  468 ; 
Haskinx  v.  Lnmsden,  10  Wis.  359;  Moberly  v.  Preston,  8  Mis.  R.  462;  Cude  v. 
Redditt,  15  La.  An.  492;  Bane  v.  Kenney,  5  Foster,  N.  H.  318;  Lewis  v.  Mies,  1 
Root,  346;    Woolcott  v.  Hall,  6  Mass.  514;  Alderman  v.  French,  1  Pick.  1  ;  or  that 


252  DEFENCES. 

ever,  it  was  tacitly  conceded  that  such  a  repetition  could  be 
justified  by  declaring  the  name  of  the  previous  publisher.  The 
origin  of  the  error  is  generally  attributed  to  a  dictum  in  the 
Earl  of  Northampton's  case,  A.  D.  1613.1014  That  case  was  an 
information  under  the  statutes  of  scandalum  magnatum  in  the 
Star  Chamber,  against  Goodrich,  Cox,  Vamer,  Minor,  Lake, 
and  Ingram,  for  publishing  defamatory  language  concerning 
the  Earl  of  Northampton.  The  defendants  all  appeared  in 
court ;  Goodrich  confessed  to  the  publication,  but  alleged  in  jus- 
tification that  he  was  not  the  first  author,  and  vouched  said 
Cox,  who  in  like  manner  confessed  and  vouched  said  Varner, 
who  in  like  manner  confessed  and  vouched  said  Minor,  who  in 
like  manner  confessed  and  vouched  said  Lake,  who  in  like  man- 
ner confessed  and  said  he  heard  the  words  from  one  Spoket, 
who  said  he  heard  them  from  said  Ingram,  who  in  like  manner 
confessed  and  said  he  heard  the  words  from  two  English  fugi- 
tives at  Leghorn.  The  court  intimated  that  the  defence  of  the 
language  being  a  repetition  would  be  available  in  the  case  of  a 
common  person,  but  not  in  the  case  of  a  peer,  and  all  the  de- 
fendants were  punished  by  fine  and  imprisonment.  The  error 
so  far  gained  ground  that  subsequently 1015  we  find  it  held  that 
a  plaintiff  in  an  action  for  slander,  where  the  slander  ap- 
peared to  be  a  repetition,  was  required  in  his  declaration  to 
negative  that  the  defendant  had  in  fact  heard  spoken  the  lan- 
guage he  was  charged  with  publishing.  Passing  over  a  long 
interval  we  find,  A.  D.  1796,  Lord  Kenyon,  then  Chief  Justice 
of  the   King's   Bench,   referring  approvingly  to   the  Earl  of 

the  defendant  spoke  the  words  as  merely  giving  the  report.  Wheeler  v.  Shields, 
2  Scam.  348  ;  Smalley  v.  Anderson,  4  Monr.  367.  Perhaps  a  defendant  may  give 
in  evidence  under  the  general  issue  the  existence  of  rumors  against  the  plain- 
tiff's character,  to  show  that  he  has  sustained  no  injury,  or  in  mitigation. 
Waithman  v.  Weaver,  1  D.  &  R.  10 ;  Treat  v.  Browning,  4  Conn.  408 ;  Nelson  v. 
Evans,  1  Dev.  9 ;  Calloway  v.  Middleton,  2  A.  K.  Marsh.  372 ;  Binns  v.  Stokes,  27 
Mis.  (5  Cush.)  239.  Neither  particular  reports,  nor  public  reputation  of  the  slan- 
der, nor  of  kindred  charges  against  the  plaintiff,  are  admissible.  Inman  v.  Fos- 
ter, 8  Wend.  602  ;  Kennedy  v.  Gifford,  19  Wend.  296  ;  Afapes  v.  Weeks,  4  Wend. 
659 ;    Watson  v.  Buck,  5  Cow.  499. 

1014  12  Rep.  132;  Moore,  821. 

1016  Crawford  v.  Middleton,  1  Lev.  82. 


REPETITION.  253 

Northampton's  case,  but  he  introduced  this  qualification  that 
to  render  the  repetition  justifiable,  the  defendant  must  at  the 
time  of  the  repetition,  mention  the  name  of  the  previous  pub- 
lisher, and  that  to  name  the  previous  publisher  for  the  first 
time  in  the  defendant's  plea 1016  was  not  a  justification.  This 
qualification  was  repeated  in  a  subsequent  case,  A.  D.  1805.1(m 
This  other  qualification  was  also  introduced,  that  if  the  first  pub- 
lisher retracted  what  he  had  published;  one  who  subsequently 
and  with  a  knowledge  of  such  retraction  repeated  the  matter, 
was  not  legally  excused  by  naming  the  prior  publisher.1018  It 
long  continued  to  be  conceded  as  law  that  no  action  could  be 
maintained  for  the  repetition  orally  of  defamatory  matter,  if  at 
the  time  of  the  repetition  the  name  of  the  previous  publisher 
was  mentioned  ;  thus,  in  A.  D.  1829,  in  an  action  for  slander, 
the  plea  that  the  language  was  a  repetition  of  words  previously 
spoken  by  A.,  and  that  A.  was  named  as  the  author  at  the  time 
of  the  publication  was  overruled,  not  because  naming  the 
author  was  no  defence,  but  because  the  plea  did  not  allege  that 
A.  spoke  the  words  maliciously,  nor  that  the  defendant  believed 
them  to  be  true,  nor  that  they  were  spoken  on  a  justifiable  oc- 
casion.1019 In  Connecticut,  it  seems,  that  giving  the  name  of  the 
author  was  never  allowed  as  a  defence,  but  the  fact  was  re- 
ceived in  mitigation  ; 1020  subsequently  it  was  held  not  receiv- 
able in  that  State,  even  in  mitigation.1021  In  Pennsylvania, 
giving  the  name  of  the  previous  publisher  was  held  to  rebut 
the  inference  of  malice,1022  and  to  amount  to  a  mitigating  cir- 
cumstance.1028    In  Maine,  Indiana,  and  some  other  States,  it 

"llf'  Davis  v.  Lewis,  7  T.  R.  17  ;  and  see  Church  v.  Bridgman,  6  Missouri,  190. 
11,17   Woolnoth  v.  Meadows,  5  East,  463. 
""'  Maitland  v.  Goldney,  2  East,  426. 

1019  McPhearson  v.  Daniels,  10  B.  &  C.  263  ;  and  see  Moberly  Y.  Preston,  8  Mis- 
souri, 462.  In  Lewis  v.  Walter,  4  B.  &  A.  605,  it  was  said  there  must  be  a  just 
reason  for  the  repetition. 

Leister  v.  Smith,  2  Root,  24. 

Austin  v.  Hanchett,  2  Root,  148  ;   Treat  v.  Browning,  4  Conn.  408. 

1022  Binns  v.  McCorcle,  2  P.  A.  Brown's  R.  79  ;  Hersh  v.  Ringwalt,  3  Yeates, 
508. 

1023  Kennedy  v.  Gregory,  1  Binney,  85  ;  Morris  v.  Duane,  1  Binney,  90  n.  In 
New  Jersey,  naming  the  previous  publisher  was  received  in  mitigation.  Cook  v. 
Barkley,  1  Penn.  N.  J.  Rep.  169,  A.  D.  1807. 


254  DEFENCES. 

has  been  held  that  in  an  action  for  slander,  giving  the  name  of 
the  previous  publisher  of  the  words  is  a  justification  of  the 
repetition.1024  Thus  far  we  have  had  reference  only  to  actions 
for  slander ;  the  first  case  in  which  the  question  appears  to  have 
been  raised  in  an  action  for  libel,  was  in  the  Supreme  Court  of 
Pennsylvania,  A.  D.  1803.1025  It  was  there  held  that  giving  the 
name  of  the  author  was  no  excuse  for  the  publication  of  a  libel. 
The  like  ruling  was  made  A.  D.  1813,  in  the  Supreme  Court  of 
New  York.1026  The  first  mention  of  the  point  arising  in  an 
action  for  libel  in  the  English  courts  was  in  A.  D.  1817,  when 
it  was  held  not  to  be  a  defence  that  the  defamatory  matter  was 
communicated  to  the  defendant  by  a  third  person.1027  In  a  sub- 
sequent case  for  publishing  an  alleged  libel,  purporting  to  be  an 
account  of  a  trial,  the  plea  was  that  the  alleged  libel  had  been 
previously  published  in  the  H.  Journal,  and  that  G.  H.  M.  then 
and  still  was  the  publisher  thereof ;  on  demurrer  the  plea  was 
held  bad,  as  the  defendant  in  his  repetition  had  only  named  the 
journal  from  which  the  alleged  libel  was  copied,  and  had  not 
given  the  name  of  the  publisher,  and  it  was  intimated  by  the 
court  that  .the  defence  of  the  publication  being  a  repetition,  and 

1024  Unless  it  be  proven  that  the  repetition  was  malicious.  Haynes  v.  Leland, 
29  Maine  (16  Shep.),  233 ;  Abrams  v.  Smith,  8  Blackf.  95  ;  Jones  v.  Chapman,  5 
Blackf.  88 ;  Crane  v.  Douglass,  2  Blackf.  85  ;  Cummerfordv.  McAvoy,  15  111.  311  ; 
Johnston  v.  Lance,  7  Iredell,  448.  Disclosing  name  of  author  at  time  of  repeti- 
tion held  a  defence.  Kelly  v.  Dillon,  5  Ind.  (Porter),  426 ;  Trabue  v.  Mayo,  3 
Dana,  138;  Robinson  v.  Harvey,  5  Monr.  519;  Parker  v.  McQueen,  8  B.  Monr.  16. 
Giving  name  of  author  is  evidence  of  want  of  malice.  Miller  v.  Kerr,  2  M'Cord, 
285;  Church  v.  Bridgeman,  6  Miss.  190;  and  see  Easterwood  v.  Quinn,  2  Brevard, 
64 ;  Smith  v.  Stewart,  5  Barr.  3*72  ;  Sextonv.  Todd,  Wright,  31V;  LTainey.  Welling, 
7  Ham.  253 ;  Farr  v.  Roscoe,  9  Mich.  353.  The  defence  of  giving  name  of  author 
must  be  specially  pleaded.  Brooks  v.  Bryan,  Wright,  760.  In  slander,  evidence 
that  the  defendant  had  been  told  by  a  third  person  that  the  plaintiff  was  guilty 
of  the  crime  imputed  to  him  is  inadmissible.  Mopes  v.  Weeks,  4  Wend.  659  ; 
Austin  v.  Hanchett,  2  Root,  148.  In  slander,  it  is  no  justification  that  defendant 
after  speaking  the  words  and  before  the  commencement  of  the  action,  disclosed 
to  plaintiff  the  author  of  the  words.  Skinner  v.  Grant,  12  Verm.  456.  In  Scott 
v.  Peebles,  2  Sme.  &  M.  546,  it  was  held  to  be  no  defence  to  an  action  for  slander 
that  the  defendant  heard  the  matter  from  a  person  out  of  the  jurisdiction  of  the 
court.     See  Evidence  in  Mitigation. 

1026  Runkle  v.  Meyers,  3  Yeates,  518. 

1026  Dole  v.  Lyon,.  10  Johns.  447. 

1027  Miles  v.  Spencer,  1  Holt,  N.  P.  533. 


TRUTH.  255 

that  the  previous  publisher  was  named  at  the  time  of  the  repe- 
tition, did  not  apply  to  libel.1028  The  first  case  in  which  the 
dictum  in  the  Earl  of  Northampton's  case  appears  to  have  been 
altogether  repudiated,  was  one  before  Judge  Betts  in  JSTew 
York,  A.  D.  1825.1029  It  may  now  be  considered  as  settled  in 
New  York  and  in  England,  that  neither  in  the  action  for  slan- 
der nor  for  libel  is  it  any  legal  excuse  that  the  alleged  defama- 
tory matter  had  been  previously  published  by  another,  whose 
name  was  mentioned  at  the  time  of  the  repetition.1030 

§  211.  It  is  now  universally  conceded  that  to  show  the  truth 
of  the  matter  published  is  a  complete  defence  to  an  action  either 
of  slander  or  libel.  A  publication  of  the  truth  is  absolutely 
privileged.1031  "We  do  not  pretend  to  vindicate  the  rule  making 
truth  a  defence,  either  as  just  in  its  practical  operation  or  sound 

1026  Lewis  v.  Walter,  4  B.  &  A.  605,  A.  D.  1821. 

1U2U  Chevalier  v.   Brush,  Anthon's  Law  Student,   186;  this  was  followed  by 
Mapes  v.  Weeks,  4  Wend.  659 ;  Inman  v.  Foster,  8  Wend.   602  ;  Hotchkiss  v. 
phant,  2  Hill,  510;  and  see  Johnston  v.  Laud,  7  Iredell,  448;    Dole  v.  Ly   >,  10 
Johns.  447;   Clarkson  v.  McCarty,  5  Blackf.  574;  Moberly  v.  Preston,  8  Mis.  i~J2. 

1080  McGregor  v.  Thwaites,  3  B.  &  C.  24;  4  D.  &  R.  695  ;  De  Crespigny  v. 
Wellesly,  5  Bing.  392;  Bennett  v.  Bennett,  6  C.  &  P.  588;  Fidrnan  v.  Ainslie,  10 
Exch.  63  ;  28  Eng.  Law  and  Eq.  R.  567  ;  nor  does  it  make  a  defence  that  the  de- 
fendant believed  the  matter  published  to  be  true,  id.  ;  Saus  v.  Joerris,  14  Wis. 
663 ;  or  that  plaintiff  himself  had  previously  published  the  same  matter.  Cook 
v.  Ward,  6  Bing.  409. 

1031  Trutn  is  a  g00a  defence  in  an  action  for  libel  or  slander.  (Ante,  notes  58, 
59;  and  see  Stat.  6  and  7  Vict.,  ch.  96;  Perry  v.  Mann,  1  Rhode  Island,  263; 
Rooty.  King,  7  Cow.  613,  and  4  Wend.  113;  1  Stark,  on  Sland.  229;  Lake  v. 
Hutton,  Hob.  253;  J' Anson  v.  Stuart,  1  T.  R.  748) ;  but  it  must  be  pleaded  and 
cannot  be  given  in  evidence  under  the  general  issue,  either  in  bar  or  in  mitigation. 
[Underwood  v.  Parkes,  Str.  1200;  Andrews  v.  Van  Denser,  11  Johns.  38;  Van 
Ankinv.  West/all,  14  Johns.  233;  Shephard  v.  Merrill,  13  Johns.  475;  Snyder  v. 
Andrews,  6  Barb.  43  ;  Wagner  v.  Holbrunner,  7  Gill,  296  ;  Smith  v.  Smith,  8 
Ired.  29;  Kelly  v.  Dillon,  r,  Porter  (Ind.),  426;  Arrington  v.  Jones,  9  Port.  139; 
Douge  v.  Pearce,  13  Ala.  127  ;  Kay  v.  Fredrigal,  3  Barr,  221  ;  Thompson  v.  Bow- 
ers, 1  Doug.  321  ;  Taylor  v.  Kobinson,  29  Maine  (16  Shep.),  323 ;  7 eagle  v.  Deboy, 
8  Blackf.  134;  Wagstaff  v.  Ashton,  1  Harring.  503;  Bodwell  v.  Swan,  3  Pick. 
-iT '* ;  Alderman  v .  French,  \  Pick.  1;  Updegrove  v.  Zimmerman,  18  Penn.  State 
Rep.  (1  Harris),  619  ;  Scott  v.  McKinnish,  15  Ala.  662  ;  Eagan  v.  Oantt,  1  McMul- 
lan,  468;  Eumseyx.  Webb,  1  Car.  it  M.  104;  Else  v.  Evans,  Anthon  N.  P.  23; 
Bums  v.  Webb,  1  Tyler,  17;  Samuel  v.  Bond,  Litt.  Sel.  Cas.  158;  Treat  v.  Brown- 
ing,  4  Conn.  408  ;   Bisbey  v.  Shaw,  2  Kernan,  67 ;  Sheahan  v.  Colli 'n s,  20   111.  325; 


256  DEFENCES. 

in  principle.  Neither  the  justice  nor  expedience  of  this  rule  is 
universally  nor  even  generally  conceded.1032   The  maxim,  that  a 

Haws  x.  Stanford,  4  Sneed,  520;  and  see  Sidgreaves  v.  Myatt,  22  Ala.  617.)  The 
defendant  may  prove  in  mitigation  such  facts  as  show  a  ground  of  suspicion  not 
amounting  to  actual  proof  of  the  charge  ( Wagner  v.  Holbrunner,  7  Gill,  296),  or 
which  tends  to  a  proof  of  the  truth,  yet  falls  short  of  it  (Snyder  v.  Andrews,  6 
Barb.  43  ;  Bisbey  v.  Shaw,  2  Kernan,  67  ;  Scott  v.  McKinnish,  1 5  Ala.  662),  or  which 
rebut  the  presumption  of  malice.  (Kennedy  v.  Dear,  6  Porter,  90 ;  Arrington  v. 
Jones,  9  Porter,  139;  Hart  v.  Reed,  1  B.  Monr.  166 ;  Chapman  v.  Calder,  14  Penn. 
St.  Rep.  (2  Harris),  365  ;  Abshire  v.  Cline,  3  Ind.  115  ;  and  see  Moseley  v.  Moss, 
6  Gratt.  534.)  Evidence  of  general  bad  character  may  be  admitted  under  the 
general  issue.  (Smith  v.  Smith,  8  Ired.  29;  Taylor-  v .-  Richardson,  29  Maine,  323.) 
An  action  of  slander  for  charging  a  man  with  having  the  venereal  disease,  and, 
with  that  disease  upon  him,  contracting  marriage,  and  communicating  that  dis- 
ease to  his  wife,  cannot  be  maintained,  if  the  plaintiff  immediately  after  his  mar- 
riage had  the  disease  in  fact,  even  by  proof  that  his  wife,  whom  he  married  with- 
out knowing  that  she  had  the  disease,  communicated  it  to  him.  Golderman  v. 
Stearns,  7  Gray,  181.  In  slander  for  calling  plaintiff  a  whore,  the  words 
wer  laid  to  have  been  spoken  in  1842  ;  plea,  that  plaintiff,  while  unmarried,  in 
183-1,  had  carnal  connection  with  one  A.  Replication,  that  plaintiff,  at  the  time 
mentioned  in  the  plea,  was  betrothed  to  said  A. ;  that  afterwards  she  was  law- 
fully married  to  him;  that  she  lived  with  him  a  virtuous  life  until  August,  1836, 
when  he  died  ;  and  that  she  had  ever  since  continued  to  live  in  innocent  and  vir- 
tuous widowhood.  Held,  on  general  demurrer,  that  the  replication  was  insuffi- 
cient. (Alcorn  v.  Hooker,  7  Blackf.  58.)  Where  the  charge  is  of  a  crime  of 
which  the  plaintiff  was  convicted,  it  is  no  answer  to  a  plea  of  the  truth  of  the 
charge,  that  the  plaintiff  was  pardoned.     (Baum  v.  Clause,  5  Hill,  196;  see  ante, 

§  I58-) 

Semble. — The  provision  of  the  Constitution  of  the  State  of  New  York,  as  to 
the  defence  of  truth  in  prosecutions  for  libel,  does  not  apply  to  civil  actions. 
(Dolloway  v.  Turrill,  26  Wend.  383.)  See  further  under  heads  Pleading,  Evi- 
dence. 

It  is  said  that  where  a  crime  is  charged,  and  the  defence  of  truth  is  sustained, 
the  plaintiff  may  be  put  upon  his  trial  for  the  offence  without  the  intervention  of 
a  grand  jury.  (Cook  v.  Field,  3  Esp.  R.  133.)  Many  instances  have  occurred 
where  the  plaintiff's  action  for  slander  imputing  the  commission  of  a  crime,  have 
occasioned  the  prosecution  and  conviction  of  the  plaintiff  for  the  imputed  offence. 
See  Pigofs  Case,  Cro.  Car.  383 ;  and  note  t,  1  Stark.  Slan.  237. 

Wm.  Parks,  the  first  printer  in  Williamsburg,  Virginia,  published  (A.  D.  1736) 
of  a  member  of  the  House  of  Assembly,  that  lie  had  been  convicted  of  sheep 
stealing;  Parks  being-  arraigned  before  the  House,  stated  the  charge  to  be  true, 
and  that  being  found  the  fact,  he  was  discharged.  See  Thomas's  History  of 
Printing  in  America. 

W32  «  j  am  qU^e  ciear  that  the  truth  ought  not  to  be  made  decisive  [as  a  de- 
fence] either  in  civil  or  criminal  proceedings ;  for  cases  may  be  put  where  the 


TRUTH.  257 

man  shall  not  profit  by  his  own  wrong,1038  ordinarily  adduced 
as  an  apology  for  the  rule  under  consideration,  if  it  applies  in 
any  case,  certainly  has  no  application  where  the  truth  consists 
in  the  misfortune  and  not  in  the  wrong-doing  of  the  person 
whom  the  publication  concerns.  The  rule  allowing  truth  as  a 
defence  in  a  civil  action  for  libel  appears  to  be  an  innovation, 

truth  instead  of  being  a  justification,  would  not  even  be  any  mitigation;  nay, 
where  it  would  be  an  aggravation.  Lord  Brougham,  Evidence,  Rep.  of  Ho.  of 
Lords  on  Libel,  &c,  July,  1843 ;  and  see  in  the  same  report  the  opinions  of 
other  lawyers  and  judges  to  the  like  effect;  and  see  2  Kent's  Com.  25;  Borth- 
wick  on  Libel,  252 ;  29  Pari.  Hist.  5*75 ;  Preliminary  Discourse  to  Starkie  on 
Slander,  xliv. 

1033  Blackstone  gives  as  a  reason  the  merit  of  the  defendant  in  having  exposed 
the  truth.  (3  Black.  Com.  ch.  8.)  This  is  combated  by  Starkie,  who  contends 
for  the  ground  that  the  plaintiff  cannot  take  advantage  of  his  own  wrong.  1 
Starkie  on  Slander,  230,  232;  and  see  Preliminary  Discourse  to  Starkie  on  Slan- 
der. 

If  the  words  be  true  they  are  no  slander,  and  may  be  justified.  2  Wils.  301 ; 
1 1  Mod.  99.  If  the  defendant  *  *  prove  the  words  to  be  true,  no  action  will 
lie,  *  *  for  then  it  is  no  slander  or  false  tale.  3  Black.  Com.  ch.  8.  The 
defendant  is  justified  in  law  and  exempt  from  all  civil  responsibility,  if  that 
which  he  publishes  be  true.     1  Starkie  on  Slander,  229. 

In  Rex  v.  Roberts,  Ms.  8  Geo.  11,  A.  D.  1735,  L'd  Hardwicke,  Ch.  J.,  says,  "It 
is  said  that  if  an  action  was  brought,  the  fact,  if  true,  might  be  justified,  but  I 
think  that  is  a  mistake,  such  a  thing  was  never  thought  of  in  the  case  of  Harman 
v.  Delany,  (1  Str.  898.)  I  never  heard  such  a  justification  in  an  action  for  a  libel 
even  hinted  at ;  the  law  is  too  careful  in  discountenancing  such  practices  ;  all  the 
favor  that  I  know  truth  affords  in  such  a  case  is,  that  it  may  be  shown  in  mitiga- 
tion of  damages."  It  is  added  in  a  note  by  the  editor  of  the  American  edition 
of  Starkie  on  Slander  (vol.  1,  p.  233),  "In  the  time  of  Lord  Hardwicke,  it  was 
denied,  not  only  by  him  but  by  others,  that  the  truth  could  be  given  in  evidence 
in  bar  of  a  recovery;"  and  in  a  subsequent  note  (vol.  1,  p.  235),  until  1792,  when 
the  judges  of  England  gave  their  opinion  in  Parliament  upon  questions  put  to 
them  on  the  Libel  Bill,  the  only  authorities  for  the  position  that  a  defendant  might 
plead  the  truth  of  a  libel  in  justification,  were  the  dicta  of  Hobart,  C.  J.,  in  Lake 
v.  Button,  Hob.  R.  253,  and  of  Holt,  C.  J.,  in  an  anonymous  case,  11  Mod.  99 ; 
and  the  acquiescence  of  the  bar  and  the  court  in  J' Anson  v.  Stuart,  1  T.  R.  748. 
Since  then  are  the  cases  of  King  v.  Parsons,  A.  D.  1799,  in  which  L'd  Kenyon 
observed  that  it  was  competent  for  a  defendant  in  an  action  for  libel  to  plead  the 
truth  in  justification,  and  Plunket  v.  Cohbctt,  A.  D.  1804,  in  which  Lord  Ellen- 
borough  remarked,  "  in  case  the  libel  had  been  true  the  defendant  could  have 
justified  it  on  the  record."  Another  reason  assigned  for  making  truth  a  defence 
is,  that  truth  disentitles  to  damages.  (Blackburn,  J.,  Campbell  v.  Spottiswoode,  8 
Law  Times  Rep.  N.  S.  201 ;  3  Best  cfe  S.  769 ;  Fairman  v.  Ives,  6  B.  <fc  A.  646.) 
17 


258  DEFENCES. 

and  of  comparatively  modern  introduction.1034  Probably  its 
origin  was  in  this  wise  :  Until  the  statute  of  the  fourth  year  of 
Queen  Anne,  A.  D.  1706,  only  a  single  plea  was  permitted  in  a 
civil  action,  and  there  is  no  record  prior  to  that  statute  of  a 
plea  of  truth  in  an  action  for  libel.  At  least  until  A.  D.  1702, 
truth  was  admitted  in  mitigation  under  the  general  issue  of  not 
guilty,1035  but  between  that  date  and  A.  D.  1716,  probably  after 
the  statute  of  Anne  allowing  several  pleas,  at  a  meeting  of  the 
judges  of  England,  the  rule  was  settled  not  to  allow  the  truth 
to  be  given  in  evidence  in  mitigation,  but  requiring  that  it 
should  be  pleaded.  From  this  we  infer  that  no  such  plea  ex- 
isted prior  to  that  time,  and  the  requiring  the  truth  to  be  spe- 
cially pleaded  was  evidently  to  prevent  a  surprise  upon  the 
plaintiff,  and  to  enable  him  to  be  prepared  with  his  reply. 
Notwithstanding  this  rule  requiring  truth  to  be  specially 
pleaded,  we  find  that  at  least  until  A.  D.  1735,  truth  was  re- 
garded only  as  matter  of  mitigation.  The  system  of  pleading 
then  in  vogue  knew  no  such  thing  as  a  plea  in  mitigation  ;  in 
that  system  every  plea  was  either  in  abatement  or  in  bar,  and 
when  truth  was  required  to  be  pleaded  it  was  almost  of  course 
to  regard  it  as  a  plea  in  bar,  and  thus,  as  we  suppose,  the  truth, 
when  specially  pleaded,  became  a  defence.  The  truth,  how- 
ever, which  is  admitted  as  a  defence  is  the  truth  of  the  defama- 
tory matter  in  substance  and  in  fact,  and  in  the  sense  in  which 
it  was  used  and  was  intended  to  be  understood.  If  A.  says  of 
X.  that  he  is  a  thief,  and  C.  publishes  that  A.  said  X.  was  a 
thief,  in  a  certain  sense  C.  would  publish  the  truth,  but  not  in 
the  sense  which  would  constitute  a  defence ;  C.'s  publication 
would  in  fact  be  bat  a  repetition  of  A.'s  words,  which,  as  we 
have  seen,  would  not  be  a  defence.  [§  210.J  The  truth,  which 
in  such  a  case  would  amount  to  a  defence,  would  be  that  X. 
was  a  thief.  Again,  if  A.,  speaking  ironically,  says  of  X.  that 
he  is  an  honest  man,  meaning  and  conveying  the  idea  that  X. 

1034  Selwyn's  N.  P.  986 ;  Borthwick  on  Libel,  246.  Truth,  it  is  said,  was  at  all 
times  a  defence  in  an  action  for  slander.  1  Stark,  on  Slander,  234;  3  Blac.  Com. 
ch.  8.  This,  however,  seems  doubtful.  See  Smith  t.  Richardson,  Willes,  20 ; 
Bull.  N.  P.  7. 

1035  Smith  v.  Harrison,  Raym.  727. 


TRUTH.  259 

is  a  dishonest  man,  it  would  not  be  a  justification  of  these  words 
to  allege  that  it  was  true  X.  was  an  honest  man,  but  to  consti- 
tute a  defence  the  allegation  required  would  be  that  it  was  true 
X.  was  a  dishonest  man.  We  shall  give  some  illustrations  of 
the  requirements  of  a  justification  on  the  ground  of  truth,  and 
the  subject  will  be  farther  illustrated  under  the  head  of  Plead- 
ing. 

§  212.  Where  defamatory  allegations,  whether  published 
orally  or  in  writing,  are  divisible  [§  145],  but  not  otherwise, 
the  defendant  is  permitted  to  justify  on  the  ground  of  truth, 
one  or  some  of  them,  less  than  the  whole.1036  But  whether  he 
justify  the  whole  or  a  part  only,  the  justification  as  to  so  much 
as  is  intended  to  be  justified  must  go  the  whole  length  of  the 
charge  in  all  its  material  allegations.  The  justification  must 
always  be  as  broad  as  the  charge,  and  of  the  very  charge  at- 
tempted to  be  justified.1037  A  charge  that  the  plaintiff,  a 
brewer,  caused  his  establishment  to  be  supplied  with  unwhole- 


1036 


See  ante,  notes  to  §  145,  and  Stiles  v.  Nokes,  7  East,  493 ;  Andrews  v. 
Thornton,  8  Bing.  431 ;  1  M.  &  Sc.  670 ;  Gregory  v.  Duke  of  Brunswick,  6  Sc.  N. 
R.  809;  Vesseyv.  Pike,  3  C.  &  P.  512;  Van  Dcrveer  v.  Sutphin,  5  Ohio  N.  S. 
293;  OP  Connelly.  Mansfield,  9  Ir.  Law  R.  1*79;  Smith  v.  Parker,  13  M.  &  W. 
459 ;  Fero  v.  Ruscoe,  4  Corns.  162.  A  declaration  for  a  libel  commencing  "horse- 
stealer," and  followed  by  a  statement  of  facts,  and  concluding  that  the  defendant 
published  it  with  intent  to  cause  it  to  be  believed  that  the  plaintiff  had  been 
guilty  of  feloniously  stealing  a  horse  ;  plea,  except  as  to  the  word  horse-stealer, 
a  justification,  stating  circumstances  inducing  suspicion  that  the  plaintiff  had 
been  guilty  of  the  fact ;  held,  on  demurrer,  that  the  plea  was  insufficient. 
(Mountney  v.  Watton,  2  B.  &  Ad.  613.) 

1037  Weaver  v.  Lloyd,  2  B.  &  C.  6*78  ;  4  D.  &  R.  230;  Bissell  v.  Cornell,  24  Wend. 
354 ;  Stillwell  v.  Barter,  19  Wend.  478 ;  Fidler  v.  Delavan,  20  Wend.  57  ;  Torrey  v. 
Field,  10  Verm.  353 ;  Crump  v.  Adney,  1  Cr.  &  M.  362  ;  Burfordy.  Wible,  32  Penn. 
St.  R.  95  ;  Wilson  v.  Beighler,  4  Iowa,  427 ;  Van  Derveer  v.  Sutphin,  5  Ohio  N.  S.  293  ; 
Powers  v.  Skinner,  1  Wend.  451 ;  Cooper  v.  Barber,  24  Wend.  105  ;  McKinly  v.  Rob, 
20  Johns.  351.  The  plea  must  justify  the  same  words  as  those  contained  in  the 
declaration.  {Skinner  v.  Grant,  12  Verm.  456;  Ormsby  v.  Douglass,  2  Abb.  Pra. 
Rep.  407.)  "  There  is  no  such  thing  as  a  half-way  justification.  When  several 
distinct  things  are  charged  [§  145,  ante],  the  defendant  may  justify  as  to  one, 
though  he  may  not  be  able  to  do  so  as  to  all ;  but  as  to  any  one  charge  the  justifi- 
cation will  either  be  everything  or  nothing.  If  the  charge  be  of  stealing  a 
horse,  it  is  not  half  a  defence,  nor  any  part  of  one,  to  show  the  plaintiff  took  the 
horse  by  a  mere  trespass."    Fero  v.  Ruscoe,  4  Corns.  165. 


260  DEFENCES. 

some  water,  is  not  proved  to  be  true  by  showing  that  the  estab" 
lishment  toas  supplied  with  unwholesome  water.  To  establish 
the  truth  of  the  charge,  it  must  be  shown  the  plaintiff  caused 
the  supply.1038  To  a  charge  against  the  plaintiff,  a  schoolmas- 
ter, that  the  decay  of  the  school  under  his  management  was 
attributable  to  his  violent  conduct,  it  was  held,  on  special 
demurrer  to  the  plea,  not  a  sufficient  justification  to  allege  that 
the  plaintiff  had  been  guilty  of  violent  conduct  toward  some 
of  his  scholars ;  to  have  amounted  to  a  justification,  it  should 
have  been  shown  that  the  decay  of  the  school  was  occasioned 
by  the   violent   conduct   of   the    plaintiff.1039    A  charge  that 

loss  pyiier  v.  Delavan,  20  Wend.  57.  A  charge  that  plaintiff  was  a  "cheat" 
and  "  swindler  "  was  held  justified  by  the  fact  that  he  sold  goods  for  the  purpose 
of  preventing  their  seizure  under  an  attachment  for  the  benefit  of  his  creditors. 
(Odiornc  v.  Bacon,  6  Cush.  185.) 

io«9  gmHh  y_  Parker,  15  M.  &  W.  459.  To  a  declaration  for  a  libel,  charging 
that,  by  hypocritical  cant,  &c,  plaintiff  and  his  associates  effected  the  incorpo- 
ration of  the  Manhattan  Bank,  in  which  plaintiff's  share  of  the  profits  was  sev- 
eral thousand  dollars  ;  and  that  plaintiff,  as  a  member  of  the  senate,  advocated 
the  bill  entitled  "  An  Act  for  supplying  the  City  of  New  York  with  pure  and 
wholesome  water,"  knowing  that  it  contained  a  clause  authorizing  the  company 
to  carry  on  banking  business,  and  when  he  knew  that  the  other  members  of 
the  legislature  were  ignorant  of  that  fact,  &c,  the  defendant  pleaded  in  justifica- 
tion, that  the  plaintiff  was  a  senator  on  second  April,  1798  ;  that  such  a  law  was 
passed,  and  that,  at  the  time  of  passing  said  law  (first  April,  1798),  plaintiff,  as 
senator,  advocated  the  bill,  knowing  at  the  time  that  it  contained  such  clause, 
&c. ;  and  that  a  large  majority  of  the  members  of  the  legislature  were  ignorant 
of  that  fact,  <fec. ;  and  that,  at  the  time  and  place  first  above  mentioned,  plaintiff 
held,  and  was  owner  of  a  large  portion  of  the  stock  created  by  the  said  law,  to 
wit,  five  thousand  dollars  ;  all  which  acts  of  the  plaintiff  were  hypocritical  and 
deceptive,  and  contrary  to  his  duty  as  a  senator,  &c.  The  plaintiff  replied,  that 
at  the  time  he  advocated  the  said  law  as  a  senator,  he  did  not  hold,  and  was  not 
owner  of  any  stock  created  by  it ;  nor  had  he  any  interest  whatever  in  the  stock, 
&c.  On  a  general  demurrer  to  the  reply  the  plea  was  held  to  be  bad,  as  not  be- 
ing an  answer  to  the  declaration,  and  that  the  defendant  having  committed  the 
first  fault  in  pleading,  the  plaintiff  was  entitled  to  judgment.  (Spencer  v.  Soutli- 
wick,  11  Johns.  573;  rev'g  10  Johns.  259,  where  the  replication  was  held  to  be 
bad.)  Held  that  a  charge  of  incest  could  not  be  justified  by  alleging  that  plain- 
tiff told  the  defendant  her  brother  had  had  sexual  intercourse  with  her.  (Abshire 
v.  Cline,  3  Ind.  115;  and  see  Long  v.  Brougher,  5  Watts,  437,  and  in  note  1030, 
ante.)  It  is  not  every  act  of  illicit  intercourse  on  the  part  of  a  female  that  will 
justify  calling  he»  a  whore.  (Smith  v.  Wyman,  4  Shep.  13.)  The  defendant,  in 
a  case  of  slander,  admitted  in  his  answer  that,  while  he  was  conducting  his  own 


TRUTH.  261 

plaintiff  had  stolen  defendant's  shingles  is  not  justified  by  the 
fact  that  plaintiff  sold  defendant's  shingles  without  his  author- 
ity, and  afterward  denied  that  he  knew  anything  respecting 
them ;  to  constitute  a  justification  of  such  a  charge,  a  felonious 
taking  must  be  shown.1040  And  where  the  charge  was  that 
plaintiff  had  begotten  a  bastard  child,  innuendo  that  he  had 
committed  adultery  with  the  child's  mother,  it  was  held  that  to 
allege  an  adulterous  intercourse  with  the  mother  of  the  bastard 
was  not  stating  a  sufficient  justification.1041  So  a  charge  of  sell- 
ing intoxicating  liquor  contrary  to  law,  is  not  justified  by  show- 
ing a  sale  of  intoxicating  liquor.  The  charge  that  the  sale 
was  contrary  to  law,  is  not  answered.1042  Nor  is  a  charge  that 
plaintiff  had  one  night  gone  nine  miles  from  home,  to  four  dif- 
ferent colliers'  shanties,  and  that  she  had  gone  to  bed  to  the 
colliers,  justified  by  showing,  that  plaintiff'  had  committed  for- 
nication with  one  collier  elsewhere  than  at  the  shanties  referred 
to  in  the  charge.1043  A  charge  of  criminal  intercourse  with  A. 
cannot  be  justified  by  showing  a  criminal  intercourse  with  B.1044 

cause  before  a  justice,  and  examining  the  plaintiff  as  a  witness,  he  interrogated 
him:  "  Do  y®u  say  I  put  you  on  Williams'  land?"  that  the  witness  answered, 
"  I  do,"  and  that  the  defendant  replied,  "  That's  a  lie."  The  answer  further 
alleged  that  plaintiff's  answer  to  defendant's  question,  and  his  statement  that  the 
defendant  put  witness  on  Williams'  land,  were  untrue.  Held,  that  the  answer 
was  not  good  as  a  justification.  (Lewis  v.  Black,  27  Miss.  (5  Cush.)  425.)  A 
charge  that  plaintiff's  ship  was  unseaworthy  and  had  been  bought  by  Jews  to 
take  out  convicts,  is  not  justified  by  showing  the  ship  was  unseaworthy.  (In- 
gram v.  Lawson,  5  Bing.  N.  C.  G6.)  The  justification  should  be  of  the  meaning, 
not  of  the  words  merely.  (Snow  v.  Witcher,  9  Ired.  346  ;  Fidlcr  v.  Detavan,  20 
Wend.  57.)  The  charge  must  be  directly  met,  and  not  argumentatively  or  by 
inference.  (Id.)  Where  the  charge  was  that  the  plaintiff  had  bolUd,  it  is  not  a 
justification  to  say  he  quitted.  (O'Brien  v.  Bryant,  16  M.  &  W.  168  ;  4  D.  &  L. 
341 ;  16  Law  Jour.  Rep.  77,  Ex. ;  and  see  Wachter  v.  Quenzer,  29  N.  Y.  547.) 

1040  Shepherd  v.  Merrill,  13  Johns.  475. 

1041  Hollon  v.  Muzzy,  30  Verm.  365. 

1042  Ho/ton  v.  Muzzy,  30  Verm.  365. 

1043  Burford  v.  Wible,  32  Penn.  St.  R.  95,  and  see  Ricke  v.  Stanley,  6  Blackf. 
169;  scmblc,  a  defendant  cannot  justify  a  charge  that  the  plaintiff  had  criminal 
intercourse  with  a  certain  woman  at  a  certain  place,  by  pleading  that  he  had  such 
intercourse  with  her  at  another  place.     (Sharp  v.  Stephenson,  12  Ired.  348.) 

1044  Walters  v.  Smoot,  11  Ired.  315,  and  see  Pallet  v.  Sargent,  36  N.  H.  496; 
Randall  v.  Holsenbake,  3  Hill,  S.  C.  175;  Ridley  v.  Perry,  4  Shepl.  21. 


262  DEFENCES. 

So  a  charge  of  committing  one  offence  is  not  justified  by  show- 
ing the  commission  of  another  offence,  although  of  the  same 
or  even  greater  enormity.1045  A  charge  of  stealing  one  kind  of 
chattel  cannot  be  justified  by  showing  theft  of  another  kind  of 
chattel.  A  charge  that  plaintiff  stole  "a  pot  and  waiter"  is 
not  justified  by  the  fact  that  he  stole  a  waistcoat  pattern.1046  A 
charge  of  stealing  a  dollar  from  A.  cannot  be  justified  by 
proof  of  stealing  a  dollar  from  B.1047  To  prove  a  forgery  to 
the  amount  of  $80,  is  not  a  justification  of  a  charge  of  forgery 
to  the  amount  of  $250,  or  any  other  sum.1048  A  charge  of  the 
crime  against  nature  with  a  mare,  is  not  justified  by  showing  a 
commission  of  that  crime  with  a  coio.im  A  charge  that  A.,  a 
commissioner  to  examine  witnesses,  returned  the  examination 
of  divers  witnesses  that  were  never  sworn,  is  not  justified  by 
proof  of  a  return  of  the  examination  of  one  witness  who  had 
not  been  sworn.1050  Nor  is  a  charge  that  the  plaintiff  carried 
on  smuggling  as  a  business,  justified  by  proof  of  a  single  act  of 
smuggling.1051  So  a  charge  of  smuggling  during  the  war,  is 
not  justified  by  showing  a  smuggling  before  the  war.1032  And 
where  the  charge  was  that  plaintiff  was  a  bankrupt  in  April, 

1045  Stow  v.  Converse,  4  Conn.  17;  Torrey  v.  Field,  10  Verm.  353  ;  Andrews  v. 
Van  Deuzer,  1 1  Johns.  38.  Charging  plaintiff  with  being  a  whore  is  not  justi- 
fied by  the  fact  that  she  is  a  "  reputed  thief."  (Smith  y.  Buckecker,  4  Rawle, 
295.)  It  is  no  justification  of  a  charge  of  horse-stealing  and  counterfeiting  that 
plaintiff  was  thought  no  more  of  than  a  horse-thief.  (A'elson  v.  Musgrave,  10 
Mis.  648.)  A  charge  of  hardness  toward  the  poor,  dissoluteness  of  morals,  &c, 
purporting  to  be  conclusions  from  instances  of  bad  conduct  previously  narrated 
in  the  publication,  cannot  be  justified  by  proof  of  other  instances.  Bartholemy 
v.  The  People,  2  Hill,  248. 

1046  Eastland  v.  Caldwell,  2  Eibb,  21 ;  Hilsden  v.  Mercer,  Cro.  Jac.  676.  A 
charge  of  perjury  on  one  occasion  cannot  be  justified  by  showing  that  plaintiff 
committed  perjury  on  some  other  occasion,  or  in  some  other  respect,  than  that 
alleged.  Wliittaker  v.  Carter,  4  Ired.  4G1 ;  Starr  v.  Harrington,  1  Smith,  360 ; 
1  Cart.  515 ;  Randall  v.  Holsenbake,  3  Hill,  S.  C.  175. 

1047  Self  v.  Garner,  15  Mis.  480. 

I04B  Stiles  v.  Comstock,  9  How.  Pra.  R.  44. 
1049  Andrews  v.  Van  Deuzer,  11  Johns.  38. 

1060  Fysh  v.  Thorowgood,  Cro.  Eliz.  623. 

1061  Stillwell  v.  Barter,  19  Wend.  487. 
1053  Stillwell  v.  Barter,  19  Wend.  487. 


TRUTH.  263 

in  the  twelfth  year  of  James  the  First,  it  was  held  not  to  be 
a  justification  to  show  that  plaintiff  was  a  bankrupt  in  the 
fifteenth  year  of  James  the  First.1053  It  is  not  a  justification  of 
several  charges  to  prove  the  truth  of  one  of  them.1034  A 
charge  in  these  words  :  "  thou  hast  played  the  thief  with  me, 
and  hast  stolen  my  cloth  and  a  half  yard  of  velvet,"  is  not  jus- 
tified by  showing  that  plaintiff  was  defendant's  tailor,  and  that 
he,  defendant,  delivered  to  plaintiff  a  yard  and  a  half  of  velvet 
to  make  defendant  hose,  and  plaintiff  made  them  too  narrow, 
by  reason  of  which  defendant  said,  "  Thou  hast  stolen  part  of 
the  velvet  which  I  delivered  to  you."1055  A  charge  against  an 
attorney,  "  You  are  a  paltry  lawyer,  and  use  to  play  on  both 
hands,"  is  not  justified  by  showing  that  plaintiff  had  exhibited 
articles  of  the  peace  against  R.,  and  had  afterwards  promised 
R.  that  he  should  not  be  molested  on  account  of  those  articles, 
and  that  notwithstanding  he  had  endeavored  to  prosecute  R. 
upon  those  articles."1056  A  charge  that  plaintiff,  a  public  min- 
ister, had  traitorously  betrayed  the  secrets  of  his  own  govern- 
ment, is  not  justified  by  the  fact  that  the  plaintiff  disclosed  the 
instructions  given  to  him  as  such  minister,  although  coupled 
with  the  additional  fact  that  he  was  censured  by  his  govern- 
ment for  making  such  disclosures.1057  A  charge  that  plaintiff, 
a  counsellor-at-law,  had  offered  himself  as  witness  in  order  to 
divulge  the  secrets  of  his  client,  is  not  justified  by  the  fact  that 
in  a  private  conversation  out  of  court  the  plaintiff  disclosed 
a  secret  of  his  client,  nor  by  the  fact  that  plaintiff  offered  him- 
self as  a  witness  to  divulge  matters  communicated  to  him  by 
his  client,  but  which  were  not  privileged  publications  in  the 
sense  of  publications  he  wxas  privileged  from  disclosing 
[§  208]. 1058    A  charge  that  plaintifK,  a  clergyman,  had  asserted 

1063  Upsheer  v.  Betts,  Cro.  Jac.  578.  Where  the  libel  imputed  the  continuance 
of  a  judgment,  held  not  sufficient  to  allege  there  was  a  judgment.  McNally  v. 
Oldham,  8  Law  Times,  N.  S.  G04. 

mm  powers  y  Skinner,  1  Wend.  451. 

1065  Johns  v.  G'Utens,  Cro.  Eliz.  239  ;  and  see  Bellingham  v.  Myncrs,  Cro.  Eliz. 
153. 

10i6  Rich  v.  Holt,  Cro.  Jac.  26*7. 

1067  Genet  v.  Mitchell,  1  Johns.  120. 

,0"  Riggs  v.  Dennision,  3  Johns.  Cas.  198. 


264  DEFENCES. 

that  the  blood  of  Christ  had  nothing  to  do  with  our  salvation, 
more  than  the  blood  of  a  hog,  is  not  justified  by  the  fact  that 
plaintiff  had  denied  the  divinity  of  Christ  and  the  doctrine  of 
the  atonement ;  and  asserted  that  Christ  was  a  creature,  a 
perfect  man,  but  there  was  no  more  virtue  in  his  blood  than 
that  of  any  creature.1059  So  a  charge,  "  But  this  is  not  the  first 
time  the  idea  of  falsehood  and  M.  B.  (plaintiff)  have  been 
associated  together  in  the  minds  of  many  honest  men,"  is  not 
justified  by  the  fact  that  more  than  seven  persons  believed 
plaintiff  not  to  be  a  man  of  truth,  but  addicted  to  falsehood.1060 
Charging  the  plaintiff,  a  proctor,  with  having  been  suspended 
three  times,  is  not  justified  by  the  fact  that  he  had  been  once 
suspended.1061  Where  the  charge  is  of  a  crime  committed 
under  aggravating  circumstances,  the  aggravating  circum- 
stances must  be  justified  ;  it  is  not  sufficient  to  justify  as  to  the 
commission  of  the  crime.  Thus  where  the  alleged  libel 
charged  that  the  plaintiff  had  been  tried  for  murder  in  a  duel, 
and  that  "  he  had  spent  nearly  the  whole  of  the  night  preced- 
ing the  duel  in  practicing  pistol  firing,"  held  that  to  constitute  a 
justification  it  must  be  shown  not  only  that  the  plaintiff  had 
been  tried  for  murder,  but  that  he  spent  nearly  the  whole  of 
the  night  preceding  the  duel  in  practicing  pistol  firing.1062  The 
charge  against  the  plaintiff  was  inter  alia  "  he  has  robbed  me 
to  a  serious  amount."  The  pleas  were  the  general  issue,  and 
as  to  the  words  "  he  has  robbed  me,"  that  plaintiff  had  robbed 
defendant  of  a  loaf  of  bread  of  the  value  of  three  pence.  On 
the  trial  the  plaintiff'  proved  the  charge,  and  the  defendant 
proved  the  stealing  by  plaintiff  of  the  loaf  of  bread.  The 
judge  directed  the  jury  to  give  some  damages  for  the  words  to 


1059  Skinner  v.  Grant,  12  Verm.  456. 
loco  £rooj.s  v.  Bemiss,  8  Johns.  455. 


1001  Clarkson  v.  Lawson,  6  Bing.  587 ;  4  M.  &  P.  356,  and  see  Ooodburne  v. 
Bowman,  9  Bing.  532 ;  3  M.  <fc  Sc.  69 ;  Biddulph  v.  Chambcrlayne,  6  Eng.  Law  & 
Eq.  R.  347;  IV  Q.  B.  351 ;  Skinner  ads.  Powers,  1  Wend.  451.  A  charge  of  steal- 
ing "hogs"  is  not  justified  by  the  fact  that  plaintiff  stole  one  hog.  Swan  v. 
Rary,  3  Blackf.  298. 

1062  Hulsham  v.  Blackwood,  5  Eng.  Law.  &  Eq.  R.  409;  11  C.  B.  Ill  ;  20  Law 
Jour.  Rep.  N.  S.  187,  C.  P.,  and  see  Churchill  v.  Hunt,  2  B.  &  A.  685. 


TRUTH.  265 

a  serious  amount,  which  were  not  covered  by  the  plea.  The 
jury  gave  the  plaintiff  forty  shillings  damages,  and  the  court 
above  refused  to  disturb  the  verdict.1063  The  charge  that  plain- 
tiff had  been  imprisoned  on  a  charge  of  high  treason,  is  not  jus- 
tified by  the  fact  that  plaintiff  was  arrested  on  suspicion  of 
high  treason.1064  And  a  charge  that  the  plaintiff,  a  commissioner 
in  bankruptcy,  had  been  guilty  of  wilful  misconduct  in  his 
office,  is  not  justified  by  showing  misconduct  consistent  with 
rectitude  of  intention.1065 

§  213.  A  justification  on  the  ground  of  truth  need  not  go 
further  than  the  charge,1066  and  it  is  sufficient  to  justify  so  much 
of  the  defamatory  matter*  as  is  actionable,1067  or  so  much  as  con- 
stitutes the  sting  of  the  charge ;  it  is  unnecessary  to  repeat  and 
justify  every  word  of  the  alleged  defamatory  matter ; 1068  it  is 
sufficient  if  the  substance  of  the  libellous  charge  be  justified.1069 
Thus,  where  the  alleged  libel  was  that  a  serious  misunderstand- 
ing had  taken  place  amongst  the  Independent  Dissenters  of  M. 
and  their  pastor,  the  plaintiff,  in  consequence  of  some  "per- 
sonal invective"  from  the  pulpit  by  the  latter,  and  that  the 
matter  was  to  be  taken  up  seriously,  held  that  a  plea,  alleging 
that  the  plaintiff  had  spoken  from  the  pulpit  of  a  young  lady, 
naming  her,  that  her  conduct  was  a  bad  example,  and  disgrace 
to  the  school,  and  that  she  did  more  harm  than  good,  was  a  suf- 
ficient justification  ;  that  such  expressions  clearly  constituted 

1003  1  Starkie  on  Slander,  484. 

1004  Cooke  on  Defam.  116. 

11)05  Riggs  v.  Denniston,  3  Johns.  Cas.  198. 

,06C  Sanfordv.  Gaddis,  13  111.  329. 

1067  Clarke  v.  Taylor,  4  Bing.  N.  C.  654 ;  and  see  Wihon  v.  Nations,  5  Yerg. 
211.  Where  the  plea  justifying  a  libel  gave  no  answer  to  particular  scurrilous 
terms  used  iu  it;  held  that,  not  contaiuing  any  ground  of  imputation  against  the 
plaintiff  distinct  from  that  which  was  the  gist  of  the  libel,  and  the  truth  of  which 
was  justified  by  the  plea,  the  plea  was  sufficient,  and  a  rule  to  enter  judgment 
non  obstante  veredicto  refused.     Morrison  v.  Harrner,  3  Bing.  N.  C.  758. 

m»  Edwards  v.  Bell,  1  Bing.  403  ;  Moore  v.  Terrill,  1  N.  <fe  M.  559 ;  Cooper  v. 
Lawson,  1  Per.  &  1).  15;  Clark  v.  Taylor,  2  Bing.  N.  C.  654;  3  Scott,  95;  Morri- 
son v.  Harmer,  3  Bing.  N.  C.  759;  5  Scott,  410. 

m>  1  Stark,  on  Slan.  483. 


266  DEFENCES. 

"personal  invective" 1070  Where  the  charge  was  that  the  plain- 
tiff had  been  guilty  of  fornication,  it  was  held  sufficient  as  a 
justification  to  allege  that  plaintiff  was  a  strumpet,  as  being  a 
strumpet  included  the  offence  of  fornication.1071  And  where  the 
charge  was  that  in  consequence  of  the  plaintiff  being  in  bad  re- 
pute in  the  county  of  O.,  he  would  not  like  to  bring  his  action 
for  libel  in  that  county,  held  sufficient  as  a  justification  to  allege 
that  the  plaintiff  had  the  reputation  in  the  county  of  O.  of  "  a 
proud,  captious,  censorious,  arbitrary,  dogmatical,  malicious, 
illiberal,  revengeful,  and  litigious  man,  and  therefore  was  in  bad 
repute,  and  would  not  like  to  bring  his  suit  there." 1072  And  to 
a  charge  that  plaintiff  signed  defendant's  name  to  a  note  with- 
out his  (defendant's)  permission,  it  was  held  sufficient  as  a  justi- 
fication to  allege  that  defendant  did  sign  defendant's  name  to  a 
note  without  his  (defendant's)  permission.1073  Where  the  decla- 
ration alleged  that  plaintiff  was  cashier  to  Q.,  and  that  defend- 
ant, in  a  letter  addressed  to  Q.,  falsely  wrote  and  published  of 
plaintiff  the  words,  "  I  conceive  there  is  nothing  too  base  for  him 
to  be  guilty  of."  A  plea  in  justification,  that  plaintiff  signed 
and  delivered  to  defendant  an  I.  O.  U.,  and  afterwards,  on 
having  sight  thereof,  falsely  and  fraudulently  asserted  that  the 
signature  was  not  his ;  and  that  the  alleged  libel  was  written 
and  published  solely  in  reference  to  this  transaction,  was,  on 
demurrer,  held  a  sufficient  justification,  as  the  alleged  libel  must 
be  understood  with  reference  to  the  subject-matter.1074 


1070  Edwards  v.  Bell,  1  Bing.  403.  In  an  action  of  slander  by  a  single  ■woman, 
under  the  act  of  1808,  Rev.  Sts.  of  North  Carolina,  c.  110,  where  the  words 
charged  were  "that  she  had  lost  a  little  one,"  "A.  B.  is  a  credit  to  her,"  the  said 
A.  B.  being  notoriously  an  incontinent  person,  and  "  she  better  be  listening  to 
the  report  about  herself  losing  a  little  one,"  it  was  held,  that  it  was  sufficient  to 
plead  that  plaintiff  was  an  incontinent  woman.  (Snow  v.  Witcher,  9  Ired.  346.) 
But  the  justification  should  extend  to  every  part  of  the  defamatory  matter  which 
could  by  itself  form  a  substantive  ground  of  action.  (Cooper  v.  Lawson,  8  Adol. 
&  Ell.  161.) 

1071  Clark  v.  Munsell,  6  Mete.  373,  ante  in  note  641* 

1072  Cooper  v.  Greely,  1  Denio,  347. 

1073  Creebnan  v.  Morley,  1  Blackf.  281. 

1074  Tighe  v.  Cooper, "90  Eng.  Com.  Law  Rep.  (7  Ell.  &  Bl.)  639. 


BELIEF.  267 

§  214.  To  justify  a  charge  of  perjury  on  the  ground  of  truth, 
it  must  not  only  be  alleged  that  the  plaintiff's  testimony  was 
false,  but  that  it  was  wilful  or  corrupt.1073  It  would  be  no  justi- 
fication of  such  a  charge  to  allege  that  the  false  testimony  was 
given  by  mistake.1076 

§  215.  Where  the  meaning  of  the  defamatory  matter  is 
pointed  by  an  innuendo,  a  justification  on  the  ground  of  truth 
must  justify  in  the  sense  imputed  by  the  innuendo.1077  Thus, 
where  the  plaintiff,  an  apothecary,  was  charged  with  administer- 
ing medicine  to  a  child,  with  an  innuendo  that  he  had  feloniously 
killed  the  child,  a  plea  that  the  plaintiff  did  injudiciously,  in- 
discreetly and  improperly,  and  contrary  to  his  duty,  adminis- 
ter medicine  to  the  child,  and  that  the  death  of  the  child  was 
caused  or  accelerated  by  the  said  medicine,  was  held  bad  on 
demurrer,  as  confessing  without  justifying  the  innuendo.1078 

§  216.  Although  the  truth  of  the  defamatory  matter  is  ad- 
mitted as  a  defence,  a  mere  belief  in  the  truth  of  the  matter 
published,  however  honestly  that  belief  may  be  entertained, 
will  not  of  itself  constitute  any  defence.1079     Belief  or  disbelief 

1076  Mitchell  v.  Borden,  8  Wend.  570;  Clark  v.  Dibble,  16  Wend.  601 ;  Gage  v. 
Robinson,  12  Ohio,  250;  Biisellv.  Cornell,  24  Wend.  354. 

1076  Fero  v.  Ruscoe,  4  Corns.  162;  Torrey  v.  Field,  10  Verm.  353;  The  State  v. 
Burnham,  9  N.  Hamp.  34 ;  Jenkins  v.  Cockerham,  1  Ired.  309.  It  is  not  a  justifi- 
cation of  a  charge  of  false  swearing  that  the  defendant  had  good  reason  for  pub- 
lishing the  words,  and  made  the  publication  from  good  motives  and  justifiable 
ends.     {Thompson  v.  Bowers,  1  Doug.  321.) 

1077  Mitchell  v.  Borden,  8  Wend.  570;  Clarke  v.  Dibble,  16  Wend.  601 ;  Gage 
V.  Robinson,  12  Ohio,  250. 

1078  Edsall  v.  Russell,  2  Dowl.  N.  S.  641 ;  5  Sc.  K  S.  801.  Where  an  intent 
is  charged,  it  must  be  justified.  Gage  v.  Robinson,  12  Ohio,  250;  Riggs  v.  Den- 
niston,  3  Johns.  Cas.  198. 

1079  However  honestly  the  party  who  publishes  a  libel  believes  it  to  be  true, 
if  it  is  untrue  in  fact,  the  law  implies  malice,  unless  the  occasion  justifies  the  act; 
and  whether  the  occasion  justifies  the  act,  is  a  question  of  law.  Darby  v.  Ouselcy, 
36  Eng.  Law  &  Eq.  R.  518;  Holt  v.  Parsons,  23  Texas,  9.  A  bona  fide  belief  in 
the  truth  of  the  alleged  libel  is  no  defence.  Campbell  v.  Spottiswoode,  3  Best  & 
Smith,  769;  8  Law  Times  Rep.  N.  S.  201 ;  and  see  Moore  v.  Stevenson,  27  Conn. 
14;  Woodruff  v.  Richardson,  20  Conn.  238;  Fry  v.  Bennett,  3  Bosw.  200;  Smart 
v.  Blanehard,  42  N.  Hamp.  137;  Watson  v.  Moore,  2  Cush.'l33;  Hotchkiss  v.  For- 


268  DEFENCES. 

in  the  truth  of  the  matter  published  can  be  material  only  upon  an 
inquiry  into  the  intent  with  which  a  publication  is  made  [§  90]. 

§  217.  Legislative  proceedings  are  privileged.  It  is  ob- 
viously necessary  to  the  efficient  discharge  of  the  duties  of  a 
legislator,  that  in  the  performance  of  those  duties  he  should  be 
allowed  unlimited  license  of  speech,  and  be  unfettered  with 
any  apprehension  of  being  made  responsible  for  the  conse- 
quences of  any  utterances  he  may  deem  it  fitting  and  necessary 
to  make  in  his  official  capacity  ;  accordingly  we  find  it  every- 
where wisely  provided  that  for  what  a  legislator  says  as  a  legis- 
lator, and  within  the  legislative  chamber,  he  can  never  be  chal- 
lenged in  any  tribunal  other  than  the  body  of  which  he  is  a 
member.  Tins  immunity,  enjoyed  by  the  members  of  the  Brit- 
ish Parliament  in  virtue  of  custom  and  statutes,  is  guaran- 
teed to  members  of  Congress  by  the  Federal  Constitution,  and 
to  members  of  the  State  legislatures  by  State  constitutions 
and  statutes.1080     The  proceedings  of  the  English  Parliament 

ter,  30  Conn.  314;  Gilmer  v.  Ewbank,  13  111.  271 ;  Duncan  v.  Brown,  15  B.  Monr. 
186 ;  Grimes  v.  Coyle,  6  B.  Monr.  301.  Defendant  cannot  show  thatit  was  generally 
admitted  for  many  years  that  the  plaintiff  was  guilty  of  the  crime  charged.  {Long 
v.  Brougher,  5  Watts,  439);  or  that  plaintiff  was  reported  by  her  own  sister  to  be 
guilty  of  the  offence  imputed.  (Smithy.  Buckecker,  4  Rawle,  295.)  No  suspicion, 
however  strong,  will  amount  to  a  justification.  (Powell  v.  Plunkctt,  Cro.  Car.  52; 
Moijer  v.  Pine,  4  Mich.  409.)  Common  fame  is  no  ground  for  justifying  an  extra 
judicial  charge.  (Hutt.  13;  Bridg.  62;  Brownlow,  2.)  A  defendant  caonot  jus- 
tify a  charge  of  theft  by  showing  that  he  has  just  grounds  for  believing  the  plain- 
tiff to  be  a  very  dishonest  man.  (Woodruff v.  Richardson,  20  Conn.  238.)  The 
publication  in  a  newspaper  of  rumors  is  not  justified,  but  may  be  mitigated,  by 
the  fact  that  such  rumors  existed.  (Skinner  ads.  Powers,  1  Wend.  451.)  In  miti- 
gation of  damages,  in  an  action  for  a  libel,  the  defendant  was  allowed,  under  the 
general  issue,  to  show  that  he  copied  the  statement  from  another  newspaper;  but 
was  not  allowed  to  show  that  it  appeared  concurrently  in  several  other  news- 
papers. (Saunders  v.  Mills,  6  Bing.  213  ;3M,4  P.  520.)  In  an  action  for  a 
libel  in  the  defendant's  newspaper,  held  that  he  could  not  show  that  it  was  copied 
from  another  paper,  against  the  proprietor  of  which  damages  had  been  recovered, 
but  he  might  show  that  he  had  omitted  many  of  its  parts  reflecting  on  the  plain- 
tiff.    (Creevy  v.  Carr,  1  C.  &  P.  64.) 

I0B0  2  Hume's  Hist,  of  England,  280  ;  Statutes,  4  Hen.  VIII. ;  1  W.  &  M.  st.  2, 
ch.  2.  The  constitution  of  New  York  (Const,  of  1846,  Art.  III.,  §  12)  enacts, 
"  For  any  speech  or  debate  in  either  house  of  the  legislature,  the  members 
shall  not  be  questioned  in  any  other  place."  This  provision  is  repeated  in  ex- 
actly the  same  words,  1  Rev.  Stat,  of  New  York,  154,  §  11. 


LEGISLATIVE  PROCEEDINGS.  269 

are  in  theory  conducted  with  closed  doors,  and  although  in  fact 
reporters  and  others  are  usually  present  during  the  debates,  yet 
persons  so  present  are  supposed  to  be  concealed,  and  the  fact 
of  their  presence  to  be  unknown  to  the  House.  All  persons 
not  members  are  liable  to  be  expelled  on  a  member  or  the  clerk 
of  the  House  rising  and  stating,  "  Mr.  Speaker,  there  are  stran- 
gers present."  This  intimation  is  always  made  prior  to  a  divi- 
sion, and  all  persons  not  members,  nor  officers  of  the  House, 
without  exception,  retire.  It  is  a  part  of  the  same  theory  which 
forbids  the  publication,  unless  by  order  of  the  House,  of  any  of 
its  proceedings,  and  which  makes  any  publication  of  its  pro- 
ceedings without  such  order  a  criminal  contempt.  Congress 
has  never  asserted,  at  least  as  directly  as  the  British  Parlia- 
ment, the  right  to  sit  with  closed  doors,  or  to  control  the  pub- 
lication of  its  proceedings.  The  twelfth  rule  of  the  House  of 
Representatives  provides  for  clearing  the  galleries  in  cases  of 
disorderly  conduct,  and  the  fourteenth  rule  provides  for  the 
admission,  by  the  Speaker,  of  stenographers  wishing  to  take 
down  the  debates.1081     The  immunity  accorded  to  speech  in  leg- 

A  member  of  the  legislature  is  not  liable  to  an  action  of  slander  for  words 
spoken  in  the  discharge  of  his  official  duties,  even  though  spoken  maliciously. 
{Coffin  v.  Coffin,  4  Mass.  1,  31.  But  see  Commonwealth  v.  Blanding,  3  Pick.  310, 
314.)  But  this  privilege  is  not  extended  to  words  spoken  unofficially,  though  in 
the  legislative  hall,  and  while  the  legislature  is  in  session.  {Coffin  v.  Coffin,  4 
Mass.  1.)  Thus  where  one  member  informally  communicated  to  another,  with- 
in the  representatives'  hall,  and  while  the  house  was  in  session,  that  the  statement 
which  he  had  just  made  to  the  house  upon  some  question  lately  under  considera- 
tion, and  likely  again  to  be  acted  upon,  was  founded  upon  misrepresentation,  and 
that  his  informant  was  a  person  not  to  be  believed,  using  some  slanderous  expres- 
sion in  regard  to  the  informant,  it  was  held,  that  the  slander  was  not  privileged 
by  the  place  or  occasion.     {lb.) 

1W1  The  constitution  of  the  State  of  New  York  of  1T77,  §  xv.,  enacted  that: 
The  doors  both  of  the  Senate  and  Assembly  shall  at  all  times  be  kept  open 
to  all  persons,  except  when  the  welfare  of  the  State  shall  require  their  debates  to 
be  kept  secret.  *  *  This  provision  was  repeated  in  the  constitution  of  1823, 
Art.  1,  §  4,  but  not  in  the  constitution  of  1846.  The  Revised  Statutes  of  New 
York  (1  R.  S.  153,  §  4)  provide:  The  doors  of  each  house  are  to  be  kept  open, 
except  when  the  public  welfare  shall  require  secresy.  The  Constitution  of  the 
United  States,  Art.  I.,  §  5,  subd.  3,  provides :  That  each  house  [of  the  legislature] 
shall  keep  a  journal  of  its  proceedings,  and,  from  time  to  time,  publish  the  same, 
excepting  such  parts  as  may  in  their  judgment  require  secresy.       The  constitu- 


270  DEFENCES. 

islative  assemblies  extends  to  any  record  such  assemblies  may 
make  of  their  proceedings,  and  to  all  documents  read  in  such 
assemblies ;  it  extends  also  to  all  petitions  or  addresses  pre- 
sented to  the  legislature,  and  to  such  a  prior  publication  of  any 
such  documents  as  may  be  necessary  to  their  preparation  and 
completeness.1082 

§  218.  The  immunity  which  is  accorded  to  a  legislator 
while  in  the  performance  of  his  duties,  does  not  extend  so  far 
as  to  justify  his  repeating,  not  in  his  official  capacity,  any 
defamatory  matter  he  may  have  written  or  spoken  while  in  the 
discharge  of  his  duties ;  and  therefore  for  any  repetition  by  a 
legislator  outside  of  the  legislative  chamber  of  what  he  may 
have  spoken  within  it,  he  is  liable  in  like  manner  as  any  other 
individual.1083 

tions  of  New  York  of  1777,  §  xxxv.,  and  of  1823,  Art.  I.,  §  iv.,  required  both 
branches  of  the  State  legislature  to  keep  a  journal  of  their  proceedings,  and  to 
publish  the  same;  and  the  Revised  Statutes  of  New  York  (1  R.  S.  153,  §  3) 
enact :  Each  house  is  required  to  keep  a  journal  of  its  proceedings,  and  to  pub- 
lish the  same,  except  such  parts  as  may,  in  its  judgment,  require  secresy. 

io»2  wnere  a  petition  to  Parliament,  containing  defamatory  matter,  was  re- 
ferred to  a  committee,  held  that  no  action  woidd  lie  for  printing  and  distribut- 
ing a  number  of  copies  for  the  use  of  the  members.  Lake  v.  King,  1  Mod.  58 ; 
1  W.  Saund.  131  b.     See  post,  note  1092. 

ios3  -pne  defen(jarit,  in  a  speech  in  the  House  of  Lords,  accused  the  prosecutor 
(an  attorney)  of  improper  conduct  in  his  profession.  This  speech  the  defendant 
afterwards  printed  in  several  newspapers.  For  this  publication  an  information 
was  filed  against  the  defendant,  and  he  was  convicted,  the  publication  being  held 
not  to  be  privileged.  Lord  Kenyon  said  "  That  a  member  of  Parliament  had 
certainly  a  right  to  publish  his  speech,  but  that  speech  should  not  be  made  a 
vehicle  of  slauder  against  any  individual ;  if  it  was,  it  was  a  libel."  (Rex  v. 
Lord  Abinger,  1  Esp.  226;  Peake  Cas.  310.)  In  Rex  v.  Creevy,  1  Mau.  &  S.  278, 
the  defendant,  a  member  of  the  House  of  Commons,  had  made  a  speech  in  his 
place  in  Parliament  containing  a  charge  against  an  individual.  An  incorrect 
report  of  this  speech  having  been  published,  the  defendant  procured  the  publi- 
cation of  a  correct  version  of  his  speech;  this  publication  was  held  not  to  be 
privileged.  Semble,  a  bona  fide  publication  by  a  member  of  the  House  of  Com- 
mons to  his  constituents,  of  a  speech  delivered  by  him  in  his  place  in  Parliament, 
is  privileged.  (Davison  v.  Duncan,  7  Ell.  &  Bl.  229;  3  L'd  Campbell's  Lives  of 
the  Chief  Justices,  167.)  Home  Tooke  applied  for  a  criminal  information  against 
a  bookseller  for  publishing  a  copy  of  a  report  made  by  a  committee  of  the  House 
of  Commons.  The  rule  was  discharged,  partly  because  the  report  did  not  appear 
to  bear  the  meaning  imputed  to  it,  and  partly  because  the  court  doubted  its  right 
to  interfere.     (Rex  v.  Wright,  8  Term  Rep.  293.) 


LEGISLATIVE  PROCEEDINGS.  271 

§  219.  The  English  Parliament,  as  does  Congress  and  our 
State  legislatures,  print  for  the  use  of  its  members  reports  of 
their  proceedings  in  the  bodies  of  their  Houses  and  in  their 
committees,  and  these  are  privileged.  The  English  Parliament 
also  print  additional  copies  for  sale  to  the  public.  These  addi- 
tional copies  are  printed  by  the  printer  to  the  Parliament 
Houses,  at  the  public  expense,  and  sold  by  such  printer,  the 
proceeds  of  the  sales  being  returned  to  the  public  treasury. 
The  publication  of  these  additional  copies  was  held  by  the 
Court  of  Queen's  Bench  not  to  be  privileged,  and  where  a 
report  so  printed  and  sold  contained  defamatory  matter,  the 
printer  and  publisher  was  held  to  be  liable  therefor  in  an  action 
for  libel.1084  In  consequence  of  that  decision  a  statute  was 
passed  legalizing  the  publication  by  the  orders  of  the  Par- 
liament Houses  of  the  reports  of  their  proceedings.1085  In  the 
State  of  New  York,  the  publication  in  a  newspaper  of  legis- 
lative proceedings  and  debates  is,  by  statute,  conditionally 
privileged.1086  While  it  has  been  very  generally  and  perhaps 
universally  conceded  that  it  would  be  proper  to  legalize,  by 
statute,  the  publication  without  the  order  of  Parliament  of  fair 
and  true  reports  of  the  proceedings,  it  has,  until  recently,  been 
generally  admitted,  that  as  no  such  statute  has  been  enacted, 
and  inasmuch  as  any  report  of  the  proceedings  in  Parliament 
*  is  per  se  a  wrongful  and  unpermitted  act,  the  publisher  is  liable 
for  the  consequences  of  the  publication  of  any  such  report,  and 

1084  In  Stoclcdale  v.  Hansard,  9  Adol.  <fe  El.  1 ;  2  M.  &  Rob.  9 ;  3  Per.  &  D.  330 ; 
7  Car.  &  P.  731,  it  was  held  to  be  no  defence,  in  an  action  for  libel,  that  the 
defamatory  matter  was  contained  in  a  report  of  parliamentary  proceedings  and 
was  published  by  order  of  the  House  of  Commons.  As  to  this  case  see  May's 
Law  and  Practice  in  Parliament,  156,  and  Report  to  the  House  of  Commons  of  a 
Select  Committee  on  the  Publication  of  Printed  Papers,  May,  1837,  with  an 
Appendix  of  the  orders  and  proceedings  of  the  two  Houses  of  Parliament  relating 
to  the  publication  of  Parliamentary  Reports  and  papers  and  review  of  the  legal 
authorities  upon  the  jurisdiction  of  Parliament  on  matters  of  privilege. 

1086  3  and  4  Vict.,  ch.  9.  Defendant  may,  under  the  general  issue,  prove  an 
order  to  publish,  and  the  absence  of  malice,  which  entitles  him  to  a  verdict. 

1086  Laws  of  New  York,  1854,  ch.  130.  See  post,  Freedom  of  the  Press,]  and 
note  1122. 


272  DEFENCES. 

cannot  shield  himself  by  the  plea  that  the  matter  published  was 
a  true  report  of  the  proceedings  in  Parliament.1087 

1087  Lord  Campbell:  "I  think  it  should  be  declared  and  enacted  that  a  fair 
and  faithful  report  of  proceedings  in  either  House  of  Parliament,  from  -which 
strangers  are  not  excluded,  is  justifiable,  and  cannot  be  made  the  subject  of  any 
action  or  prosecution."  Lord  Denman :  "  I  cannot  help  entertaining  a  strong 
opinion  that  no  faithful  report  of  a  debate  ought  to  expose  the  publisher  to  an 
action  or  to  a  criminal  proceeding.  As  the  law  now  stands,  the  fact  of  the  report 
being  a  faithful  one  is  nothing  like  a  justification,  but  it  ought  to  be."  (Report 
from  Committee  of  House  of  Lords  on  the  Law  of  Defamation  and  Libel,  July, 
1843.) 

In  connection  with  this  branch  of  our  inquiry  we  cannot  refrain  from  a 
reference  to  the  case  of  Wason  v.  Walter,  reported  in  the  London  Times  of  19th, 
20th,  and  21st  December,  1867.  The  plaintiff,  a  member  of  the  bar,  sent  a 
petition  to  Earl  Russell  for  presentation  to  the  House  of  Lords,  praying  an 
inquiry  into  a  complaint  he  alleged  against  the  Lord  Chief  Baron  of  the  Court  of 
Exchequer.  In  the  debate  on  the  presentation  of  this  petition,  the  friends  of  the 
Lord  Chief  Baron  cast  imputations  upon  the  plaintiff.  A  report  of  this  debate, 
and  a  leading  article  in  reference  thereto,  appeared  in  the  London  Times  of  which 
the  defendant  was  the  proprietor.  For  the  publication  of  this  report  and  leading 
article  the  action  was  brought.  The  defences  were,  that  the  report  was  a  true 
report,  and  that  the  leading  article  was  a  just  and  fair  comment  upon  the  pro- 
ceedings in  the  debate.  It  was  admitted  that  the  matter  was  libellous  in  its 
character,  and  the  only  questions  were,  (1)  Was  it  a  defence  to  say  the  matter 
was  a  correct  report  of  a  proceeding  in  Parliament?  and  (2)  Was  it  the  subject  of 
criticism?  The  Lord  Chief  Justice  charged  the  jury:  The  report  being  faithful 
and  correct,  "  I  am  prepared  to  direct  you,  in  point  of  law,  that  the  report  is  a 
privileged  communication,  and  one  which  is  not  the  subject-matter  of  an  action." 
And  after  stating  that  the  question  was  then  for  the  first  time  directly  presented 
for  adjudication,  and  that  some  dicta  supported  his  ruling,  he  added :  "  The 
cases  have  not  hitherto  gone  the  length  o£  establishing  the  law  I  am  now  laying 
down,  but  I  find  nothing  which  to  my  mind  satisfactorily  contradicts  the  position 
I  adopt."  And  again :  "  There  may  be  dicta  which  may  possibly  have  a  different 
tendency,  but,  I  think,  with  the  larger  and  more  enlightened  views  relative  to 
the  law  of  libel  which  have  gradually  developed  themselves  in  our  day,  the  time 
has  come  when  the  proposition  I  have  put,  ought  to  be  affirmatively  announced." 
As  to  the  second  point,  the  charge  was:  "I  am  of  opinion  that  the  debate  in  the 
House  of  Lords  upon  the  plaintiff's  petition  was  a  matter  of  public  interest  and 
concern  upon  which  a  public  writer  was  perfectly  justified  in  making  such  com- 
ments as  the  circumstances  warranted."  The  plaintiff  tendered  a  bill  of  excep- 
tions to  this  charge.  The  jury  gave  a  verdict  for  the  defendant.  The  Lord 
Chief  Justice  has  shown  by  his  charges  in  all  the  cases  of  libel  tried  before  him, 
that  he  favors  the  greatest  latitude  of  newspaper  criticism.  For  his  views  on 
the  right  of  criticism,  reference  may  be  had,  in  addition  to  the  above  case,  to  the 
case  of  Dr.  Hunter  v.  The  Publisher  of  the  Pall  Mall  Gazette,  printed  in  pam- 


JUDICIAL    PROCEEDINGS.  273 

§  220.  Defamatory  matter  published  in  or  to  a  court  of 
criminal  jurisdiction,  may  constitute  the  wrong  called  "  mali- 
cious prosecution"  m  but  never  the  wrong  called^slander  or 
libel.'  Thus  where  the  defendant  went  before  a  justice  of  the 
peace,  and  demanded  a  warrant  against  the  plaintiff  for  steal- 
ing his  ropes,  the  justice  said,  "  Be  advised,  and  look  what 
you  do,"  and  the  defendant  replied,  "  I  will  charge  him  with 
flat  felony,  for  stealing  my  ropes  from  my  shop ; "  in  an  "action 
of  slander  for  speaking  these  words,  the  court  agreed  that  the 
words  being  spoken  to  a  justice  of  the  peace,  on  an  application 
for  a  warrant  which  was  lawful,  would  not  support  an  action, 
for  if  they  would,  no  other  would  come  to  a  justice  of  the 
peace  to  inform  him  of  a  felony.1089  Every  one  having  reason- 
able and  probable  grounds  for  suspecting  that  a  crime  has  been 
committed,  has  the  right  to  communicate  his  suspicions  to  the 
magistrate  having  jurisdiction  of  criminal  offences.  The  exist- 
ence of  reasonable  and  probable  ground  for  the  suspicion  is  ab- 
solutely necessary  to  create  this  right ;  a  communication  made 
without  these  grounds  is  inexcusable,  and  is  a  malicious  prose- 
cution, for  which,  however,  no  remedy  can  be  had  in  an  action 
for  slander  or  libel.  This  results  from  the  rules  of  pleading 
and  the  classification  of  actions  into  several  different  forms 
[§  53]  or  causes  of  action,  and  operates  even  in  those  States 


phlet  form  and  in  the  Pall  Mall  Gazette  of  Nov.  27,  28,  29,  30,  Dec.  1,  3,  1866. 
In  the  above  referred  to  case  of  Wason  v.  Walter,  the  plaintiff  gave  the  following 
neat  definition  of  libel :  "  Defamation,  without  legal  excuse." 

10bB  It  is  "  malicious  prosecution,"  and  not  what  we  term  "  slander  or  libel," 
which  corresponds  to  "  calumny  "  in  the  civil  law.  In  the  Roman  law  calumny 
signified  an  unjust  prosecution  or  defence  of  a  suit,  and  a  calumniator  was  one 
who  unjustly  accused  others  in  a  court  of  law.  See  Domat's  Civil  Law,  B'k  III., 
tit.  6,  §  2,  div.  14,  note,  edit,  by  Strahan.  Calumny  is  still  employed  in  this  sense 
in  the  courts  of  Scotland,  and  in  the  Ecclesiastical  and  Admiralty  Courts  of 
England.     See  Dunlap's  Adm.  Pra.  291,  and  j>ost,  note  1092. 

10b9  Ram  v.  Lamley,  Hutt.  113.  An  action  of  slander  does  not  lie  for  a 
charge  of  a  criminal  offence  made  to  a  magistrate  upon  which  a  warrant  issues, 
although  the  accused  be  discharged  after  examination.  (Schock  v.  McChesncy, 
2  P.  A.  Browne's  R.  6,  App.)    And  see  post,  note  1091. 


13 


274  DEFENCES. 

where  it  lias  been  expressly  enacted  that  all  forms  of  action 
are  abolished.1090 

§  221.  The  right  of  appealing  to  the  civil  tribunals  is  more 
extensive  than  the  right  of  appealing  to  the  criminal  tribu- 
nals ;  for,  as  to  the  former,  every  one  has  the  right,  with  or 
without  reasonable  cause  for  so  doing,  to  prefer  his  complaint 
to  them ;  and  whatever  he  may  allege  in  his  pleading  as  or  in 
connection  with,  his  grounds  of  complaint,  can  never  give  a 
right  of  action  for  slander  or  libel.  The  immunity  thus  en- 
joyed by  a  party  complaining,  extends  also  to  a  party  defend- 
ing ;  whatever  one  may  allege  in  his  pleading  by  way  of  de- 
fence to  the  charge  brought  against  him,  or  by  way  of  counter- 
charge, counter-claim,  or  set-off,  can  never  give  a  right  of 
action  for  slander  or  libel.  The  ride  as  thus  laid  down  has 
been  doubted  by  some,  and  it  has  been  said  that  if  the  tribunal 
to  which  the  complaint  be  made  has  no  jurisdiction  of  the 
ubject-matter,  or  if  the  defamatory  matter  be  irrelevant  to  the 
matter  in  hand,  or  if  the  party  complaining  or  defending 
maliciously  inserts  defamatory  matter  in  his  pleading,  that  in 
such  cases  the  party  aggrieved  may  maintain  his  action  for 
slander  or  libel.1091    Notwithstanding  the  dicta  to  the  contrary, 

io9o  rp^-g  resujf.  js  fought  about  as  thus :  If  the  plaintiff  shows  on  the  face  of 
his  [declaration]  complaint  that  the  publication  was  made  to  a  court  of  criminal 
jurisdiction,  he  does  not  show  a  cause  of  action  unless  he  alleges  inter  alia  that  the 
publication  was  made  without  reasonable  or  probable  cause.  But  if  the  [declara- 
tion] complaint  does  not  disclose  that  the  publication  was  made  to  a  court  of  crim- 
inal jurisdiction,  then  it  woidd  be  a  complete  defence  that  the  publication  was 
made  to  a  court  of  criminal  jurisdiction  ;  which  defence  could  not  be  avoided  by 
replying  or  proving  on  the  trial  that  the  publication  was  without  reasonable  or 
probable  cause,  as  that  would  be  in  the  one  case  a  departure,  in  the  other  a 
variance.     See  Torrey  v.  Field,  10  Verm.  353. 

1091  u  "^orijg  that  might  otherwise  import  a  slander,  being  necessarily  used  in 
a  judicial  procedure,  cannot  subject  the  party  to  any  censure  or  penalty,  either 
in  respect  to  parties,  objections  to  witnesses,  or  challenges  to  jurymen,  that  be- 
ing understood  as  done  in  vindication  of  one's  right;  but  yet,  if  things  that  are 
injurious,  quite  foreign  to  the  cause,  be  charged  in  the  libel"  (i.  e.,  the  summons 
or  declaration),  "such  pursuer  shall  suffer  as  a  slanderer;  for  the  cover  of  a  judi- 
cial procedure  cannot  protect  him,  since  the  design  of  injuring  is  evident,  and 
the  more  public  and  solemn  it  is,  the  injury  is  so  much  the  more  heinous." 


JUDICIAL    PROCEEDINGS.  275 

we  believe  the  better  and  the  prevailing  opinion  to  be,  that  for 
any  defamatory  matter  contained  in  a  pleading  in  a  court  of 
civil  jurisdiction,  no  action  for  libel  can  be  maintained;  the 
power  possessed  by  courts  to  strike  out  scandalous  matter  from 
the  proceedings  before  them,  and  to  punish  as  for  a  contempt, 
is  considered  a  sufficient  guarantee  against  the  abuse  of  this 


(Borthwick  on  Libel,  215,  n.)  If  he  (a  party  appealing  to  a  court  of  competent 
jurisdiction)  approaches  the  council  with  other  than  pure  views ;  if  under  the 
mask  of  vindicating  his  violated  rights,  seeking  a  redress  for  injuries,  or  remov- 
ing a  public  grievance,  he  calumniates  the  man  against  whom  he  prefers  his 
complaint,  I  can  discover  no  legal  or  even  plausible  gi-ound  to  shield  him  from 
answering  as  a  libeller ;  and  the  opinion  of  the  court  from  4  Co.  14,  in  the  case  of 
Buckley  v.  Wood,  I  consider  as  very  apposite  to  this  case.  It  is  dictated  by 
sound  principles  of  law  and  solid  sense.  (The  Chancellor  in  Tliorn  v.  Blanchard, 
5  Johns.  525.)  No  action  of  slander  or  Ubel  lies  for  defamatory  matter  in  a 
pleading  (Vin.  Abr.  Act.  for  Word3,  C,  a.  19;  Dawling  v.  Wenman,  2  Show.  44(5; 
S.  C.  Dawling  v.  Vcnman,  3  Mod.  108 ;  Cox  v.  Smith,  1  Lev.  119;  Brown  v.  Mi- 
chel, Cro.  Eliz.  500;  Hoar  v.  Wood,  3  Mete.  193;  Gosslin  v.  Gannon,  1  Harring- 
ton, 3;  Briggs  v.  Byrd,  12  Ired.  377;  Shelfordv.  Gooding,  2  Jones,  N.  C.  1*75; 
Lea  v.  White,  4  Sneed,  111),  as  in  a  bill  in  equity  {Forbes  v.  Johnson,  11  B.  Mom\ 
48),  or  a  writ  or  declaration  {Hardin  v.  Cumstock,  2  A.  K.  Marsh.  480),  although 
the  charge  be  groundless.  {Hill  v.  Miles,  9  N.  Hamp.  9.)  Where  one  addresses  a 
complaint  to  persons  competent  to  redress  the  grievance  complained  of,  no  action 
will  lie  against  him,  whether  his  statement  be  true  or  false,  or  his  motives  inno- 
cent or  malicious.  {Thorn  v.  Blanchard,  5  Johns.  508.)  And  it  is  at  least  doubtful 
whether  a  want  of  jurisdiction  in  the  court  to  which  a  complaint  may  be  exhib- 
ited, will  make  it  a  libel,  because  the  mistake  of  the  court  is  not  imputable  to 
the  party  but  to  his  counsel.  {Id. ;  Lake  v.  King,  1  W.  Saund.  132 ;  Hawk.  PI. 
Cr.  M,  §  8 ;  contra,  Buckley  v.  Wood,  4  Co.  14.)  So  no  action  lies  for  words 
spoken  on  giving  a  party  in  charge  to  a  constable,  or  in  preferring  a  complaint 
to  a  magistrate.  {Johnson  v.  Evans,  3  Esp.  32.)  But  the  privilege  is  confined 
strictly  to  communications  which  are  necessary  for  obtaining  redress,  or  forward- 
ing the  ends  of  justice.  Thus  where  A.  obtained  a  warrant  to  search  the  house 
of  B.  for  goods  suspected  to  be  stolen,  and  in  accompanying  the  officer  to  execute 
the  warrant  told  the  officer  that  B.  had  robbed  him,  held  that  this  statement  was 
not  privileged.  {Dancaster  v.  Hcwson,  2  Man.  <fe  R.  1*76.)  See  Lathrop  v.  Hyde, 
25  Wend.  448,  where,  under  a  similar  state  of  circumstances,  the  action  was  held 
maintainable,  the  jury  finding  express  malice.  And  where  the  defendant,  before 
making  any  complaint  to  a  magistrate,  made  a  charge  against  the  plaintiff  to  C, 
a  constable,  adding  that  he  should  require  C.  to  serve  the  warrant  on  the  plain- 
tiff, held  this  was  not  a  privileged  communication  ;  and  where,  after  the  plaintiff 
had  been  acquitted  before  the  justice,  the  defendant  repeated  the  charge  against 
the  plaintiff,  held  this  was  not  a  privileged  communication.     {Burlingarae  v. 


276  DEFENCES. 

privilege  ;       but  whatever  may  be  the  reason,  it  seems  certain 
that  where  there  is  a  perversion  of  the  right,  "  the  policy  of 


Burlingame,  8  Cow.  141.)     Whatever  may  be  said,  or  written,  by  a  party  to  a 
judicial  proceeding,  or  by  his  attorney,  solicitor,  or  counsel  therein,  if  pertinent 
and  material  to  the  matter  in  controversy,  is  privileged,  and  lays  no  foundation 
for  a  private  or  public  prosecution.     The  protection  is  absolute,  and  no  one  shall 
be  permitted  to  allege  that  it  was  said  or  written  with  malice.     But  if  a  party 
or  his  agent  pass  beyond  the  prescribed  limit  to  asperse  or  vilify  another,  he  is 
without  protection,  and  must  abide  the  consequences.     As  where  a  person  acting 
as  counsel  in  a  justice's  court  prepared  and  presented  a  declaration,  charging  the 
defendant  with  a  trespass,  and  alleging  that  the   defendant  was  "  reputed  to  be 
fond  of  sheep,"  "  in  the  habit  of  biting  sheep,"  and  that  "if  guilty,  he  ought  to 
be  shot ; "  held,  that  an  indictment  therefor,  as  a  libel,  alleging  malice,  was  good. 
{Gilbert  v.  The  People,  1  Denio,  41.)     If  a  party  institute  proceedings  in  a  court 
of  justice  as  a  pretence,  and  merely  to  promulgate  slander,  or  to  serve  any  other 
improper  purposes,  an  action  may  be  maintained  for  any  libellous  matter  con- 
tained in  it.     {Hill  v.  Miles,  9  N.  Hamp.  9.)    Where  words  accusing  the  plaintiff 
of  a  felony  were  spoken  to  a  justice,  on  an  application  for  a  warrant  for  felony, 
the  question  whether  they  are  actionable  or   not  depends  upon  the  question 
whether  they  were  made  in  good  faith  or  not,  and  that  question  should  be  left  to 
the  jury.     {Buntony.  Worley,  4  Bibb,  38;  and  see  Marshall  v.  Guntcr,  6  Rich. 
419;  Briggs  v.  Byrd,  12  Ired.  ST^.)    A  letter  addressed  to  a  judge  before  whom  a 
proceeding  is  pending,  being  an  irregular  and  improper  proceeding  is  not  priv- 
ileged.    {Goidd  v.  Hulme,  3  C.  &  P.  625.)     For  such  a  letter  the  writer  may  be 
punished  as  for  a  contempt.     {Ex  parte  MacGill,  2  Fowl.  4*74  ;  Eagleton  v.  Duchess 
of  Kingston,  8  Ves.  467.)     An  affidavit  made  before  a  magistrate  to  enforce  the 
law  against  a  person  accused  therein  of  a  crime,  does  not  subject  the  accuser  to 
an  action  for  a  libel,  though  the  affidavit  be  false  and  insufficient  to  effect  its  ob- 
ject.    {Hartsoek  v.  Reddick,  6  Blackf.  255.)     Under  statute  5  <fe  6  Vict.  c.  109, 
the  vestry,  on  precept  from  the  justices,  are  to  return  a  list  of  parishioners  liable 
to  serve  as  constables,  and  to  give  notice  when  and   where  objections  will  be 
heard  by  the  justices,  who  are  empowered  to  strike  out  of  the  list  the  names  of 
persons  not  liable  to  serve.     Plaintiff's  name  was  inserted  in  the  list  of  persons 
liable  to  serve,  and  he  attended  a  session  to  be  sworn  in,  when  the  defendant,  a 
parishioner,  objected  to  him,  and  made  a  statement  to  the  justices,  in  the  presence 
of  other  persons,   imputing  perjury  to  plaintiff.     In  an  action  for  slander  the 
jury  found  that  defendant  made  the    statement  bona  fide,  believing  it  to  be 
true.     Held,  that  the  statement  was  properly  made  before  the  justices,  and  was  a 
privileged  communication.     Kershaw  v.  Bailey,  1   Exch.  743;    17  Law  Jour.  R. 
129,  Ex. ;  and  see  10  Law  Times,  289,  and  ante,  note  1089. 

1092  Henderson  v.  Broomhead,  4  Hurl.  &  N.  577;  Astley  v.  Tounge,  2  Burr.  817. 
The  action  of  slander  does  not  lie  for  a  criminal  charge  made  by  an  affidavit  be 
fore  a  magistrate,  the  plaintiff's  remedy  being  by  an  action  for  malicious  prose- 
cution or  arrest,  or  for  maliciously  suing  out  a  search-warrant.     {Sanders  v 


JUDICIAL    PROCEEDINGS.  277 

the  law  steps  in  and  controls  the  individual  right  of  redress  " 
by  action  of  libel.1093 

§  222.  The  protection  which  is  accorded  to  a  pleading  ex- 
tends to  every  other  proceeding  in  a  civil  action,  and  therefore 
for  anything  contained  in  an  affidavit  made  in  the  course  of 
an  action  or  proceeding,  no  action  for  libel  can  be  main- 
tained. Thus,  where  an  attorney  sued  his  client  for  professional 
services,  the  client  gave  notice,  under  the  general  issue,  that  he 
would  prove  that  the  attorney  conducted  the  prosecution  and 
defence  of  the  several  suits,  and  attended  to  the  other  profes- 
sional business  in  the  declaration  mentioned,  in  so  careless,  un- 
skillful, and  improper  a  manner,  as  to  render  such  service  of  no 
value ;  the  attorney  moved  to  strike  out  the  notice  as  false,  the 
client  resisted  this  motion  upon  an  affidavit  of  his  own,  stating 
that  the  attorney  had  revealed  confidential  communications  of 
the  client  relative  to  a  portion  of  the  business  to  a  third  person, 
to  the  client's  prejudice.  For  the  allegations  in  this  affidavit 
the  attorney  brought  an  action  of  libel  against  the  client,  and 
in  his  declaration  set  out  the  facts  to  the  effect  as  stated  above, 
and  charged  that  the  allegations  of  the  affidavit  were  false, 
malicious,  and  impertinent,  a  demurrer  to  the  declaration  was 
sustained,  and  it  was  held  that  the  affidavit  was  pertinent  to 


Rollinson,  2  Strobh.  44*7.)  No  proceeding  according  to  the  regular  course  of  jus- 
tice, will  make  a  complaint  or  other  proceeding  amount  to  a  libel  for  which  an 
action  can  be  maintained;  and  a  distress-warrant  is  a  proceeding  given  to  the 
party  by  law,  for  the  purpose  of  enforcing  a  legal  right,  and  comes  directly 
within  the  reason  of  the  rule.  (Bailey  v.  Dean,  5  Barb.  297.)  When  a  requisi- 
tion is  presented  for  the  arrest  of  a  fugitive  from  justice,  with  the  proper  vouch- 
ers, according  to  the  act  of  Congress,  it  is  the  duty  of  the  executive  to  cause  the 
fugitive  to  be  arrested  and  delivered  to  the  agent  appointed  to  receive  him,  and 
the  governor  has  no  power  to  entertain  an  application  to  recall  or  modify  such 
warrant,  and  an  affidavit  to  support  such  an  application  is  not  a  privileged  com- 
munication. (Hosmer  v.  Loveland,  10  Barb.  111.)  A  complaint  to  the  grand  jury, 
containing  a  charge  of  perjury,  is  privileged,  although  before  its  presentation  it 
was  exhibited  to  various  persons,  by  whom  it  was  signed.  (Kidder  v.  Park- 
hurst,  3  Allen  (Mass.),  393.  See  Lake  v.  King,  1  Mod.  58;  Vanderzce  v.  McGregor, 
12  Wend.  545  ;  Sands  v.  Robison,  12  S.  <fc  M.  704.) 
1093  Tfiorn  v.  Blanchard,  5  Johns.  530. 


278  DEFENCES. 

the  motion,  and  the  truth  or  falsity  could  not  be  questioned  in 
an  action  for  libel.1094 

§  223.  The  due  administration  of  justice  requires  that  a  wit- 
ness should  speak,  according  to  his  belief,  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  without  regard  to  conse- 
quences, and  he  is  encouraged  to  do  this  by  the  consciousness 
that,  except  for  any  wilfully  false  statement  of  a  material  fact, 
which  is  perjury,  no  matter  that  his  testimony  may  in  fact  be 
untrue,  or  that  he  be  actuated  by  malice,  or  that  loss  ensues  by 
reason  of  his  testimony,  in  no  event  can  an  action  of  slander 
be  maintained  against  him  for  any  statement  made  as  a  wit- 
ness.1095   As  where  the  plaintiff  brought  an  action  against  one 

1094  Garr  v.  Selden,  4  Corns.  91,  reVg  6  Barb.  416.  In  Doyle  v.  CBoherty,  1 
Carr.  &  M.  418,  it  was  held  that  in  an  affidavit  in  answer  to  the  application  of 
the  plaintiff  for  a  criminal  information  against  the  defendant  for  sending  a  chal- 
lenge, the  defendant  was  justified  in  stating  any  matters,  however  defamatory  and 
otherwise  libellous,  to  preveut  the  court  making  the  rule  absolute,  and  that  no 
action  could  be  sustained  for  anything  contained  in  such  an  affidavit. 

A.,  in  opposing  a  motion  for  an  injunction  against  him,  contradicted  a  mate- 
rial fact  in  the  moving  affidavit  of  W.,  and  swore  that  W.  knew  its  falsity,  and 
had  been  guilty  of  perjury ;  held,  that  an  action  for  libel  could  not  be  maintained 
by  W.  for  the  allegation  in  A.'s  affidavit.  ( Warner  v.  Paine,  2  Sandf.  195),  and 
see  Suydam  v.  Moffatt,  1  Sandf.  495.  No  action  can  be  maintained  for  defamatory 
matter  in  an  affidavit  used  in  the  course  of  a  cause,  even  where  the  party  de- 
famed is  not  a  party  to  the  cause.  {Henderson  v.  Broomhead,  4  Hurl.  &  N.  569  ; 
Ltevis  v.  Smith,  18  C.  B.  126 ;  Bawling  v.  Venman,  3  Mod.  109.) 

1095  No  action  lies  for  words  spoken  as  a  witness.  ( Weston  v.  Dobniet,  Cro. 
Jac.  432 ;  Damport  v.  Sympson,  Cro.  Eliz.  520 ;  Astley  v.  Younge,  2  Burr.  807 ; 
Lewis  v.  Few,  5  Johns.  13.)  Although  the  words  are  spoken  maliciously  and 
without  reasonable  or  probable  cause,  and  the  plaintiff  has  suffered  damage 
in  consequence.  (Bevis  v.  Smith,  36  Eng.  L.  and  Eq.  Rep.  268  ;  18  C.  B.  126.) 
The  witness  is  not  bound  to  determine  the  materiality  of  the  evidence,  and  he 
may  answer,  without  liability  for  so  doing,  questions  put  to  him,  and  not  ob- 
jected to  or  not  ruled  out  by  the  court.  The  fact  that  the  testimony  is  irrele- 
vant, or  that  the  witness  is  influenced  by  malice,  will  not  render  him  liable  to  an 
action  for  slander.  (Calkins  v.  Sumner,  13  Wis.  193.)  In  Barnes  v.  McCrate,  32 
Maine  (2  Red.),  442,  it  is  said  the  witness  is  not  liable  if  the  answers  are  perti- 
nent and  responsive.  No  action  will  lie  against  a  witness  for  damage  sustained 
by  the  falsity  of  his  testimony  (Smith  v.  Lewis,  3  Johns.  157  ;  Grove  v.  Branden- 
burg, 1  Blackf.  234;  Cunningham  v.  Brown,  18  Verm.  123  ;  Dunlap  v.  Gladding, 
31  Maine,  435);  as  where  an  action  was  brought  against  a  witness  for  swearing 


PARTIES  TO  PROCEEDINGS.  279 

L.,  and  the  defendant  being  produced  as  a  witness  at  the  trial, 
testified  that  the  plaintiff  was  a  common  liar,  by  reason  whereof 
the  jury  gave  the  plaintiff  but  small  damages.  After  verdict 
for  the  plaintiff,  in  an  action  for  slander,  it  was  moved  in  arrest 
of  judgment  that  the  action  did  not  lie,  for  if  it  did,  every  wit- 
ness might  be  charged  upon  such  a  suggestion,  and  judgment 
was  given  for  the  defendant.1096 

§  224.  A  party  to  a  proceeding  in  a  court  of  justice  may 
ordinarily  conduct  the  prosecution  or  defence  in  person  or  by 
counsel  or  attorney,1097  in  either  case  whatever  a  party  may  rea- 
sonably believe  necessary  successfully  to  maintain  his  suit  or  his 
defence,  that  he  may  speak,  in  the  course  of  the  proceeding, 
without  being  subject  to  an  action  for  slander.  The  plaintiff 
was  a  witness  on  the  trial  of  a  cause  in  which  the  defendant 
was  a  party ;  on  her  testifying  to  a  particular  fact,  the  defendant 
immediately,  in  open  court,  exclaimed,  "  That  is  a  lie,  and  I  can 
prove  it,"  and  soon  after  added,  "  and  I  think  I  have  proved  it," 
for  this  plaintiff  sued,  and  it  was  held  no  action  would  lie,  the 
words  being  uttered  "  in  the  progress  of  a  trial,  and  in  the 
course  of  justice."1098  "Where  the  defendant,  having  made  a 
criminal  complaint  against  the  plaintiff,  was  questioned  by  him, 
with  regard  to  it  during  its  pendency,  and  answered,  in  the 

that  a  jewel  was  worth  no  more  than  £180,  whereas  it  was  worth  £500,  a  verdict 
being  found  for  the  plaintiff,  judgment  was  arrested.  (Damport  v.  Sympson,  Cro. 
Eliz.  520;  see  cases  collected  Via.  Abr.,  Act.  on  the  Case  for  Deceit.)  No  action 
lies  for  suborning  a  witness  to  testify  falsely.  (Smith  v.  Lewis,  3  Johns.  157  ; 
Bostwick  v.  Jervis,  2  Day,  447.)  In  slander  for  charging  the  plaintiff,  in  the  pres- 
ence of  "  sundry  persons,"  with  larceny,  the  defendant  pleaded  that  he  spoke  the 
words  in  giving  testimony  as  a  witness  in  a  certain  cause.  Held,  that  the  de- 
fendant might,  on  the  trial,  prove  what  the  testimony  which  he  gave  was,  and 
that  the  plaintiff,  if  he  meant  to  proceed  for  speaking  the  words  on  some  other 
occasion  than  that  named  in  the  plea,  should  have  new  assigned.  (Nelson  v.  Robe, 
6  Blackf.  204.) 

1096  Harding  v.  Bullman,  Brownlow,  2;  Hutt.  11. 

1097  In  New  York  State,  every  person  of  full  age  and  sound  mind  may  appear 
by  attorney  *  *  in  every  action  *  *  by  or  against  him  in  any  court,  or 
may  at  his   election  prosecute  or  defend  such  action  in  person.     (2  R.  S.  276, 

§  H-) 

1090  Badyley  v.  Hedges,  1  Penn.  N.  J.  Rep.  233. 


280  DEFENCES. 

presence  of  the  magistrate,  that  he  believed  the  charge  true  : 
held,  that  if  the  defendant  believed  in  good  faith,  that  it  was 
necessary  for  him  to  answer  the  plaintiff,  the  answer  was  priv- 
ileged.1099 So  it  has  been  held  that  if  a  servant  summon  his 
master  before  a  court  of  conscience  for  wages,  and  the  latter, 
in  his  necessary  defence,  utter  words  imputing  felony  to  the 
former,  no  action  will  lie.1100  Where  the  plaintiff,  in  an  action 
for  slander,  alleged  that  he  took  an  oath  in  the  King's  Bench 
to  bind  the  defendant  to  good  behavior,  and  thereupon  the  de- 
fendant falsely  and  maliciously  said  "  there  is  not  a  word  true  in 
that  affidavit,  and  I  will  prove  it  by  forty  witnesses."  The  jury 
found  the  words  false  and  malicious  and  for  the  plaintiff,  but  judg- 
ment was  arrested  on  the  ground  that  what  defendant  said  was 
in  his  justification  and  defence  in  a  legal  and  judicial  way.1101 
A  party,  who  is  not  a  barrister  or  counsellor,  conducting  a 
cause  on  his  own  behalf  or  on  behalf  of  another,  has  the  same 
privilege  as  counsel  as  to  what  he  may  say.1102  The  defendant, 
while  advocating  his  own  cause  before  a  referee,  and  while  sum- 
ming up  the  cause,  called  plaintiff  among  other  things  a  per- 
jured scoundrel ;  in  an  action  for  these  words  a  verdict  was 
taken  for  the  plaintiff,  on  motion  in  arrest  of  judgment  the  ver- 
dict was  sustained,  and  judgment  ordered  for  the  plaintiff.    The 

1090  Allen  v.  Crofoot,  2  Wend.  515.  No  statement  in  the  course  of  judicial 
proceedings,  which  a  party  may  reasonably  deem  necessary  to  his  cause,  will  be 
held  libellous,  however  defamatory  it  may  in  its  nature  be ;  and  it  makes  no 
difference  with  regard  to  such  privileged  statements  whether  they  are  or  not 
malicious,  provided  they  may  be  reasonably  deemed  necessary  to  the  case.  Lea 
v.  White,  4  Sneed  (Tenn.),  Ill  ;  Vausse  v.  Lee,  1  Hill,  S.  C.  197 ;  Gosslin  v.  Can- 
non, 1  Earring.  3  ;  Marshall  v.  G-unter,  6  Rich.  419  ;  Warner  v.  Paine,  2  Sandf. 
195. 

noo  Twftman  y.  Dunn,  4  Camp.  211.  An  action  for  libellous  words  spoken  or 
sworn  in  a  court  of  justice,  in  a  man's  own  defence,  against  a  charge  upon  him 
in  that  court,  will  not  lie.  {Astley  v.  Younge,  2  Burr.  807;  2  L'd  Ken.  536; 
Badgley  v.  Hedges,  1  Penn.  1ST.  J.  Rep.  233.) 

1101  Botdton  v.  Clapham,  W.  Jones,  431 ;  Mar.  20,  cited  by  Holroyd,  J.,  in  Hodg- 
son v.  Scarlett,  1  B.  &  A.  244,  and  commented  upon  in  Hastings  v.  Lusk,  22  Wend. 
419 ;  and  see  Kean  v.  McLaughlin,  2  S.  &  R.  470. 

1108  Ringv.  Wheeler,  7  Cow.  725;  Hastings  v.  Lusk,  22  Wend.  410;  and  Hoar 
v.  Wood,  3  Mete.  193,  where  the  defendant  was  conducting  a  prosecution  on  be- 
half of  the  people,  upon  a  complaint  preferred  by  himself. 


COUNSEL.  281 

court  said  that  to  arrest  the  judgment,  it  must  be  held  that 
counsel  are  protected  for  words  spoken  by  them  on  the  trial  of 
a  cause,  although  they  may  have  been  false,  and  uttered  wil- 
fully and  maliciously,  and  were  irrelevant,  and  although  neither 
the  evidence  nor  the  circumstances  afford  a  suspicion  to  warrant 
the  accusation.  But  the  court  thought  the  rule  could  not  be 
carried  to  that  extravagant  length.1103 

§  225.  The  right  which  a  party  to  a  proceeding  in  a  court 
of  justice  has  to  speak  all  that  he  may  reasonably  believe  to 
be  necessary  for  the  successful  maintenance  of  his  action  or 
defence,  is  enjoyed  by  one  conducting  a  proceeding  for  another, 
whether  he  be  conducting  it  as  counsel,  attorney,  or  otherwise. 
A  party  was  alleged  to  have  kept  a  sum  of  money  which,  by 
his  contract,  he  ought  not  to  have  kept ;  counsel,  in  reference 
to  this  matter,  used  the  language,  ';  This  gentleman  has  de- 
frauded us,"  and  was  interrupted  by  the  court  before  he  had 
finished  his  sentence.  Held,  first,  that  the  words  were  not 
actionable  ;  secondly,  that  they  were  not  irrelevant  to  the  mat- 
ter before  the  court.1104  "  A  counsellor  hath  a  privilege  to  en- 
force anything  which  is  informed  him  by  his  client,  and  to  give 
it  in  evidence,  it  being  pertinent  to  the  matter  in  question,  and 
not  to  examine  whether  it  be  true  or  false,  for  a  counsellor  is  at 
his  peril  to  give  in  evidence  that  which  his  client  informs  him, 
being  pertinent  to  the  matter  in  question ;  but  matter  not  perti- 
nent to  the  issue,  or  the  matter  in  question,  he  need  not  deliver, 

1103  Ring  v.  Wheeler,  1  Cow.  725  ;  Hastings  v.  Lusk,  22  Wend.  410. 

1104  Needham  v.  Dowling,  15  Law  Jour.  C.  P.  9.  An  attorney  acting  as  an  ad- 
yocate  is  privileged  as  to  statements  made  in  the  trial  of  his  client's  cause,  in 
the  same  way  as  counsel.  An  attorney,  in  defending  his  client  from  a  charge  of 
assault  in  turning  out  the  plaintiff  from  certain  premises  in  which  he  had  agreed 
to  sell  wine  under  an  agreement  with  J.,  stated  that  J.  had  sufficient  reasons  for 
determining  the  agreement ;  that  he  had  been  plundered  by  the  plaintiff  to  a 
ft-ightful  extent.  Held,  a  privileged  statement.  (Mackay  v.  Ford,  5  Hurl.  <fe 
Nor.  792.)  A  master  is  not  liable  to  an  action  of  slander  for  words  spoken  while 
acting  as  counsel  for  his  slave,  while  he  is  on  trial  before  a  competent  tribunal, 
provided  the  words  are  material  and  pertinent  to  the  matter  in  question.  (Shel- 
fer  v.  Gooding,  2  Jones'  Law  (N.  ft),  175.)  As  to  the  privilege  of  counsel,  see 
Vin.  Abr.,  Act.  for  Words,  B.  a.  2. 


282  DEFENCES. 

for  he  is  to  discern  in  his  discretion  what  he  is  to  deliver  and 
what  not,  and  although  it  be  false,  he  is  excusable,  it  'being 
pertinent  to  the  matter.  But  if  he  give  in  evidence  anything 
not  material  to  the  issue  which  is  scandalous,  he  ought  to  aver 
it  to  be  true,  for  it  shall  be  considered  as  spoken  maliciously 
and  without  cause,  which  is  a  good  grouud  for  an  action."  n05 
"  If  a  counsellor  speak  scandalous  words  of  one  in  defending  his 
client's  cause,  an  action  doth  not  lie  against  him  for  so  doing  ; 
for  it  is  his  duty  to  speak  for  his  client,  and  it  shall  be  intended 
to  be  spoken  according  to  his  client's  instructions."  1106  "  If  a 
man  should  abuse  this  privilege,  and  under  pretence  of  plead- 
ing his  cause,  designedly  wander  from  the  point  in  question, 
and  maliciously  heap  slander  upon  his  adversary,  I  will  not  say 
he  is  not  responsible  in  an  action  at  law." 1107  Counsel  is  not 
liable  to  answer  for  defamatory  matter  uttered  by  him  in  the 
trial  of  a  cause,  if  the  matter  is  applicable  and  pertinent  to  the 
subject  of  inquiry,  but  this  privilege  of  counsel  must  be  under- 
stood to  have  this  limitation,  that  he  shall  not  avail  himself  of  his 
situation  to  gratify  private  malice  by  uttering  slanderous  ex- 
pressions against  party,  witness,  or  third  persons,  which  have  no 
relation  to  the  subject-matter  of  the  inquiry,1108  and  "  if  a  coun- 
sel, in  the  course  of  a  cause,  utter  observations  injurious  to 
individuals  and  not  relevant  to  the  matter  in  issue,  it  seems 
to  me  that  he  would  not  therefore  be  responsible  to  the 
party  injured  in  a  common  action  for  slander,  but  that  it 
would  be  necessary  to  sue  him,  in  a  special  action  on  the  case, 
in  which  it  must  be  alleged  and  proved  that  the  matter  was 
spoken  maliciously,  and  without  reasonable  and  probable  cause ;" 
and  semble,  that  although  it  be  lawful  for  a  counsel  in  the  dis- 
charge of  his  duty  to  utter  matter  injurious  to  individuals,  yet 
the  subsequent  publication  of  such  slanderous  matter  is  not 

1105  Brook  y.  Montague,  Cro.  Jac.  90. 

woe  j\r0od  y.  Ounston,  Sty.  462 ;  per  Glyn,  J.,  in  Hodgson  v.   Scarlett,  1  B.  & 
A.  232 ;  L'd  Ellenborough  said  Wood  v.  Guuston  carried  the  privilege  too  far. 

1107  Tilghman,  Ch.  J.,  McMillan  v.  Birch,  1  Bin.  178. 

1108  Jennings  v.  Paine,  4  Wis.  358 ;  Hoar  v.  Wood,  3  Mete.  193  ;    Hodgson  v. 
Scarlett,  1  B.  &  A.  232  ;  Holt  N.  P.  621 ;  Parker  v.  Mitchell,  31  Barb.  469. 


SELF-DEFENCE.  283 

justifiable,  unless  it  be  shown  that  it  was  published  for  the  pur- 
pose of  giving  the  public  information  which  it  was  fit  and 
proper  for  them  to  receive,  and  that  it  was  warranted  by  the 
evidence.1109 

§  226.  The  right  of  an  accused  person  to  say  all  that  he 
may  honestly  consider  necessary  for  his  defence  is  not  confined 
to  proceedings  in  a  court  of  justice ;  it  extends  to  every  occa- 
sion upon  which  one  is  called  upon  to  defend  himself  from  any 
charge  against  him.  Thus,  words  spoken  in  good  faith,  and 
within  the  scope  of  his  defence,  by  a  party  on  trial  before  a 
church  meeting,  are  privileged,  and  do  not  render  him  liable  to 
an  action,  although  they  disparage  private  character.1110  Where 
the  defendant  expressed  an  opinion  founded  upon  the  state- 
ments of  others  that  the  plaintiff  had  maliciously  killed  his 
(defendant's)  horse.  For  expressing  this  opinion  the  defendant 
was  arraigned  he/ore  the  church.  In  self-defence  he  produced 
certificates  of  the  persons  upon  whose  authority  he  had  spoken. 
For  this  the  plaintiff  sued,  but  offering  no  direct  proof  of  mal- 
ice, it  was  held  the  action  was  not  maintainable.1111  So  where 
R.  &  Co.  received  a  written  order  for  an  iron  target,  which 
order  purported  to  come  from  the  defendant;  R.  &  Co.  sent 
the  target  to  the  defendant,  who  returned  it,  stating  that  he  had 
never  ordered  it,  and  requested  to  see  the  written  order  upon 
which  R.  &  Co.  had  acted ;  the  order  was  sent  to  the  defendant, 
and  he  wrote  R.  &  Co.  that  he  firmly  believed  it  was  written 
by  the  plaintiff.  It  was  submitted  on  behalf  of  the  defendant 
that  the  communication  was  a  [conditionally]  privileged  one. 
It  was  left  to  the  jury  to  say  whether  the  defendant  had  writ- 
ten that  the  plaintiff  was  the  author  of  the  order  sent  to  R.  & 
Co.  bond  fide  and  without  malice,  believing  his  statement  to  be 
true  ;  the  jury  found  in  the  affirmative,  a  verdict  was  entered 
for  plaintiff  with  £5  damages,  with  leave  to  the  defendant  to' 

1108  Holroyd,  J.,  Flint  v.  Pike,  6  D.  &  R.  528  ;  4  B.  &  C.  473. 
im  York  v.  Pease,  2  Gray  (Mass.),  282. 
1,u  Dunn  v.  Winters,  2  Humph.  512. 


284  DEFENCES. 

move  to  enter  the  verdict  for  him,  and  on  motion  the  verdict 
was  entered  for  the  defendant.1112 

§  227.  No  action  for  slander  or  libel  can  be  maintained 
against  a  judge,  or  one  exercising  judicial  functions,  for  anything 
he  may  say  or  write  in  his  judicial  capacity  upon  the  trial  or 
upon  the  determination  of  a  cause  or  matter  pending  before 
him ;  if  improper,  it  may  be  a  ground  for  his  impeachment  or 
for  an  application  for  his  removal,  but  not  for  an  action  of  slan- 
der or  libel.1113  Thus,  no  action  lies  against  a  coroner  for  words 
spoken  maliciously  in  the  course  of  an  inquest  before  him.1114 

1112  Croft  v.  Stevens,  7  Hurl.  <fe  N.  570 ;  see  post,  §  240. 

1113  Hex  v.  Skinner,  Loft.  1099.  Neither  party,  witness,  counsel,  jury,  or 
judge,  can  be  made  to  answer  for  words  spoken  in  office ;  although,  if  they  be  op- 
probrious and  irrelevant  to  the  case,  the  court  will  notice  them  as  a  contempt, 
and  examine  on  an  information,  and  punish  accordingly.  (Id. ;  Henderson  v. 
Broomhead,  4  Hurl.  &  N.  564;  Rendition  v.  Mcdtby,  2  Moo.  &  Rob.  438  ;  Moore  v. 
Ames,  3  Caines,  170.)  In  Entich  v.  Carrington,  19  State  Trials,  1062,  Lord 
Camden  remarks,  "  No  man  ever  heard  of  an  action  against  a  conservator  of  the 
peace  as  such."  Quoted,  South  v.  The  State  of  Maryland,  18  How.  U.  S.  Rep. 
403,  and  see  Yin.  Abr.  Act.  Case  Deceit,  Q.  b.  1. 

3114  Thomas  v.  Churton,  6  Law  Times  Rep.  N.  S.  320.  And  semlle,  there 
would  be  no  action  although  the  words  were  spoken  without  probable  cause.  (Id.) 
And  per  Cockburn,  Ch.  J. :  "I  should  not  wish  to  lay  down  the  broad  proposi- 
tion that  in  no  case  is  a  judge  liable  for  words  uttered  by  him  as  a  judge."  "A 
public  officer,  who  is  not  a  mere  volunteer,  but  compelled  to  act  in  a  judicial 
capacity,  is  not  amenable,  either  civilly  or  criminally,  for  a  mistake  in  law  or 
error  of  judgment,  when  his  motives  are  untainted  with  fraud  or  malice."  (Teall 
v.  Felton,  1  Corns.  547.) 

Words  spoken  in  discharge  of  official  duty  are  not  actionable.  ( Goodenow  v. 
Tappan,  1  Ham.  60.)  Aliter,  if  spoken  under  pretence  of  official  duty,  wantonly 
and  with  malice.  The  question  of  intention  is  to  be  left  with  the  jury.  (76.) 
Thus,  in  an  action  against  the  defendant,  a  ward-beadle,  for  words  spoken  by  him 
before  an  inquest,  but  not  in  answer  to  any  inquiries  of  the  jury  nor  in  the  pres- 
ence of  the  jury  only,  held  that  it  was  a  question  for  the  jury  whether  the  words 
were  spoken  by  the  defendant  in  the  discharge  of  his  official  duty.  (Wilson  v. 
■  Collins,  5  C.  &  P.  373.)  In  an  action  for  libel  against  one,  a  justice  of  the  peace, 
for  defamatory  matter  contained  in  an  official  certificate  by  him  to  the  grand 
jury,  held  the  publication  was  conditionally  privileged.  (Sands  v.  Robiscn,  12 
S.  &  M.  704.)  A  report  of  the  grand  jury,  under  any  part  of  §  2992  of  the  Code 
of  Iowa,  held  not  a  privileged  communication  ;  but  where  it  was  made  in  good 
faith,  and  in  the  discharge  of  a  supposed  public  duty,  it  does  not  furnish  ground 
to  sustain  an  action  for  libel.     (Rector  v.  Smith,  11  Iowa  (3  With.),  302.) 


JUDGES.  285 

For  wherever  duties  of  a  judicial  nature  are  imposed  upon  a 
public  officer,  the  due  execution  of  which  depends  upon  his  own 
judgment,  he  is  exempt  from  all  responsibility  by  action,  for 
the  motives  which  influence  him  and  the  manner  in  which  said 
duties  are  performed.  If  corrupt,  he  may  be  impeached  or  in- 
dicted, but  he  cannot  be  prosecuted  by  an  individual  to  obtain 
redress  for  the  wrong  which  may  have  been  done.1113  No  pub- 
lic officer  is  responsible  in  a  civil  suit  for  a  judicial  determina- 
tion, however  erroneous  it  may  be,  and  however  malicious  the 
motive  which  produced  it.1116  No  action  will  lie  for  defamatory 
matter  contained  in  a  presentment  of  a  grand  jury.1117  The 
plaintiff  (Captain  Jekyll)  having  preferred  certain  charges 
against  Colonel  Stewart,  an  officer  in  the  same  regiment  with 
plaintiff,  Colonel  Stewart  was  tried  by  a  court  martial,  and  the 
president  of  the  court,  Sir  John  Moore,  delivered  to  the  judge 
advocate  a  written  opinion,  as  the  decision  of  the  court,  and  in 
such  opinion,  after  stating  that  the  court  found  Colonel  Stewart 
not  guilty  of  the  charges  imputed  to  him,  added:  "The  court 
cannot  pass  without  observation  the  malicious  and  groundless 
accusations  that  have  been  produced  by  Captain  Jekyll  against 
an  officer  whose  character,  during  a  long  period  of  service,  has 
been  irreproachable."  For  this  addition  to  the  decision  Captain 
Jekyll  brought  an  action  for  libel  against  the  president  of  the 
court.  The  plaintiff  was  nonsuited,  and  a  new  trial  being 
moved  for,  it  was  refused  on  the  ground  that  the  language  com- 
plained of  formed  part  of  the  judgment  of  acquittal.1118    In 


"]B  Rochester  White  Lead  Co.  v.  The  City  of  Rochester,  3  Corns.  466.  See 
Cooke  on  Defam.  63. 

1110  Weaver  v.  Devendorf,  3  Denio,  11*7;  Vail  v.  Owen,  19  Barb.  22;  Brown  v. 
Smith,  24  Id.  419;  and  see  Hill  v.  Sellick,  21  Barb.  207;  Harman  v.  Brotherson, 
1  Denio,  537.  But  an  officer  who  violates  a  ministerial  duty,  though  his  office 
is  primarily  judicial,  is  liable  therefor.  Wilson  v.  Mayor  of  New  York,  1  Denio, 
595 ;  Rochester  White  Lead  Co.  v.  City  of  Rochester,  3  Corns.  463.  Words  spoken 
by  the  mayor  of  a  city  arc  privileged.     {Rector  v.  Smith,  11  Iowa,  302.) 

1117  Bac.  Abr.  tit.  Libel,  445,  Mo.  627 ;  Hawk.  PI.  Cr.  c.  73,  §  8 ;  and  see  ob- 
servations in  Johnson  v.  Sutton,  1  T.  R.  493. 

"1B  Jekyll  v.  Moore,  2  New  R.  341 ;  and  see  Kendillon  v.  Mcdtby,  1  Car.  &  M. 
402;  2  Moo.  &  Rob.  438;   Warden  v.  Bailey,  4  Taunt.  67;- 4  M.  &  S.  400.     And 


286  DEFENCES. 

another  case  of  an  action  brought  for  defamatory  matter  con- 
tained in  a  report  of  a  military  court  of  inquiry  appointed  to 
investigate  charges  against  the  plaintiff,  it  was  held  that  the  re- 
port was  a  privileged  publication,  and  could  not  be  given  in 
evidence.1119  So  it  was  held  that  the  defendant,  being  governor 
in  council  of  Fort  St.  George,  was  justified  in  publishing,  ac- 
cording to  the  fact,  that  the  court  of  directors  had  resolved  to 
dismiss  the  plaintiff  from  the  service  for  a  gross  violation  of  the 
trust  reposed  in  him  as  commanding  officer  of  the  Molucca 
Islands,  and  that  he  (the  defendant)  had  been  ordered  to  erase 
his  name  from  the  army  list.1120 

§  228.  "With  regard  to  the  right  of  a  judicial  officer,  we  sup- 
pose a  difference  exists  between  a  judge  of  a  court  of  record 
and  a  judge  of  a  court  not  of  record,  or  one  who  is  not,  indeed, 
a  judge  in  the  strict  sense  of  the  term,  but  who  merely  executes 
judicial  functions ;  as  respects  the  first,  his  being  a  judge,  with- 
out more,  constitutes  a  complete  defence  to  an  action  for  any- 
thing said  or  written  by  him  as  such  judge ;  but  as  respects  the 
second,  the  privilege  arises  only  in  cases  in  which  he  had  juris- 
diction. "  If  magistrates  while  occupying  the  bench,  under 
pretence  of  giving  advice,  publicly  hear  slanderous  complaints 
over  which  they  have  no  jurisdiction,  although  their  names  may 
be  in  the  commission  of  the  peace,  a  report  of  what  passed  be- 


where,  upon  a  proceeding  on  the  game  laws  in  Scotland,  after  the  defendant 
had  confessed,  and  had  appealed  to  the  leniency  of  the  court  for  a  mitigation  of 
the  penalty,  it  was  asserted  by  the  defendants,  two  of  the  justices,  that  "he  was 
a  thief,  and  had  been  known  to  steal  bee-hives  and  leather;"  held,  on  appeal, 
that  subordinate  judges  were  responsible  for  words  spoken,  if  malice  was  clearly 
made  out,  the  privilege  being  confined  only  to  members  of  Parliament  and  judges 
of  the  supreme  courts ;  the  judgment  of  the  court  of  session,  as  far  as  the  inter- 
locutor of  relevancy  was  concerned,  was  therefore  affirmed,  but  the  House  not 
being  satisfied  that  there  was  evidence  of  malice,  the  cause  was  remitted  to 
another  jury.     (AUardice  v.  Rolertson,  1  Dowl.  N.  S.  495.) 

1:13  Oliver  v.  Bentinck,  3  Taunt.  456. 

1120  Home  v.  Bentinck,  4  Moore,  563 ;  8  Price,  226,  and  note  Id.  244.  A  com- 
munication to  a  governor  respecting  an  officer  imder  his  command  is  quasi  judi- 
cial and  privileged.     (Gray  v.  Portland,  2  S.  &  R.  23 ;  4  S.  &  R.  420.) 


REPORTS  OF  JUDICIAL  PROCEEDINGS.  287 

fore  them  is  as  little  privileged  as  if  they  were  illiterate  me- 
chanics in  an  ale-house." im 

§  229.  Independently  of  any  statute,  certainly  in  the  State 
of  New  York,  and  probably  in  every  other  State,  "  the  publi- 
cation of  the  proceedings  npon  a  judicial  trial  fairly  reported 
and  without  express  malice,  is  not  actionable." 1122  The  like 
rule  obtains  in  England,  but  as  both  there  and  in  New  York 
some  limitations  are  imposed  upon  the  rule,  it  is  necessary,  in 
order  to  show  in  what  these  limitations  consist,  to  examine 
somewhat  in  detail  the  authorities  upon  the  subject.  The  ini- 
tial principle  seems  to  be  that  the  public  good  requires  that  the 
proceedings  in  courts  of  justice  should  be  conducted  openly. 
Accordingly  it  is  in  New  York  provided  by  statute  that  "  the 
sittings  of  every  court  within  this  State  shall  be  public, 
and  every  citizen  may  freely  attend  the  same."1123  Although 
there  is  no  such  law  in  England,  it  is  the  custom  there  to  hold 
the  courts  with  open  doors.  And  it  is  said  to  be  a  rule  of  law 
that  "  every  one  is  supposed  or  presumed  to  .be  cognizant  of 

1121  Pollock,  Ch.  B.  Lewis  v.  Levy,  1  El.  B.  &  E.  531 ;  36  Law  Jour.  Rep.  282,  Ex. ; 
and  see  as  to  necessity  of  tribunal  having  jurisdiction,  Hosmer  v.  Loveland,  19 
Barb.  Ill;  Howard  v.  Thompson,  21  Wend.  319;  King  v.  Root,  4  Wend.  113; 
(yDonaghuev.  Me  Govern,  23  Wend.  26;  Hastings  V.  Lush,  22  Wend.  410;  Faw- 
cett  v.  Charles,  13  Wend.  473 ;  Harrison  v.  Bush,  5  Ell.  &  Bl.  344 ;  Milam  v.  Burn- 
sides,  1  Brev.  295;  Moloney  v.  Bartley,  3  Camp.  210;  McGregor  v.  Thwaites,  3  B. 
&  C.  24. 

1,22  Edsall  v.  Brooks,  11  Abb.  Pra.  R.  227 ;  26  How.  Pra.  R.  426.  In  Few 
York  the  publication  of  judicial  proceedings  is  protected  by  statute,  which  enacts : 
— No  reporter,  editor,  or  proprietor  of  any  newspaper  shall  be  liable  to  any  action 
or  prosecution,  civil  or  criminal,  for  a  fair  and  true  report  jn  such  newspaper  of 
any  judicial,  legislative,  or  other  public  official  proceedings  of  any  statement, 
speech,  argument,  or  debate,  in  the  course  of  the  same,  except  upon  actual  proof 
of  malice  in  making  such  report,  which  shall  in  no  case  be  implied  from  the  fact 
of  publication.  (Laws  1854,  ch.  130,  §  1.)  Nothing  in  the  preceding  section 
contained  shall  be  so  construed  as  to  protect  any  such  reporter,  editor,  or  propri- 
etor, from  an  action  or  indictment  for  any  libellous  comments  or  remarks  super- 
added to  and  interspersed  or  connected  with  such  report.    {Id.  §  2.) 

1123  2  Rev.  Stat.  214,  §  1.  "  No  law  insures  the  publicity  of  the  courts  of  jus- 
tice, either  in  England  or  the  United  States."  Lieber  on  Civil  Liberty,  134 ;  en- 
larged ed.  of  1859. 


288  DEFENCES. 

the  proceedings  in  the  courts  of  justice,".1124  and  hence  "  it 
is  of  great  consequence  that  the  public  should  know  what 
takes  place  in  the  courts."1125  A  publication  of  the  proceed- 
ings of  a  court  "  only  extends  that  publicity  which  is  so  im- 
portant a  feature  of  the  administration  of  the  law  in  England, 
and  thus  enables  to  be  witnesses  of  it  not  merely  the  few  whom 
the  court  can  hold,  but  the  thousands  who  can  read  the  re- 
port," 1126  and  "  we  ought  to  make  as  wide  as  possible  the  right 
of  the  public  to  know  what  takes  place  in  a  court  of  justice."1127 
It  is  conceded  that  some  "  inconveniences  and  mischief  "  results 
or  may  result  from  the  publication  of  the  proceedings  in  courts 
of  justice,1128  but  "  the  balance  of  public  benefit  from  the  pub- 
licity is  great." im  "  Those  who  are  present  hear  all  [that  takes 
place],  relevant  or  irrelevant,  and  those  who  are  absent  may 
*  *  have  all  that  is  said  reported  to  them.  *  *  "When  once 
you  establish  that  a  court  is  a,  public  court,  a  fair  and  bond  fide 
report  of  all  that  takes  place  there  may  be  published.1130  For 
being  a  true  account  of  what  took  place  in  a  court  of  justice 
which  is  open  to  all  the  world,  the  publication  of  it  [cannot  be] 
unlawful."  u31  But,  "  it  must  not  be  taken  for  granted  that  the 
publication  of  every  matter  which  passes  in  a  court  of  justice, 
however  truly  represented,  is  under  all  circumstances  and  with 
whatever  motive  published  justifiable,  but  that  doctrine  must 
be  taken  with  some  grains  of  allowance." 11S2  For  as  a  judicial 
proceeding  is  privileged  on  principles  of  public  convenience, 
the  privilege  is  limited  in  respect  to  the  sulject-matter  of  the 
report,  and  as  to  the  manner  of  the  reporting,1133  and  the  "  con- 

1124  Willard's  Eq.  Juris.  251. 

1125  Campbell,  Ch.  J,  Hearne  v.  Stowell,  12  Adol.  <fc  El.  718  ;  4  Per.  &  D.  696. 
ii26  "Wilde,  B.,  Popliam  v.  Piikburn,  7  Hurl.  &  N.  891.    On  its-being  remarked 

to  Lord  Mansfield,  that  few  persons  attended  the  courts  merely  to  watch  the  pro- 
ceedings, he  replied,  "  No  matter,  we  sit  every  day  in  the  newspapers." 
1137  Pollock,  Ch.  B.,  Ryalls  v.  Leader,  1  Law'Kep.  298,  Ex. 

1128  Flint  v.  Pike,  4  B.  &  C.  473.     Littledale,  J. 

1129  Campbell,  Ch.  J.,  Hearne  v.  Stowell,  12  Adol.  &  El.  718;  4  Per.  &  D.  696. 
180  Bramwell,  B.,  Ryalh  v.  Leader,  1  Law  Rep.  298,  Ex. 

31  Eyre,  Ch.  J.,  Curry  v.  Walter,  1  B.  &  P.  525. 

1132  Stiles  v.  Nokes,  7  East,  493. 

1133  1  Stark.  Slan.  263. 


REPORTS  OF  JUDICIAL  PROCEEDINGS.  289 

dition  necessarily  annexed  to  the  immunity  is,  that  the  pro- 
ceeding be  fairly,  impartially,  and  correctly  reported,  and  even 
in  that  case  it  will  be  for  the  court  to  consider  whether  it  was 
lawful  to  publish  it.1134  "  Matters  may  appear  in  a  court  of 
justice  that  may  have  so  immoral  a  tendency,  or  be  so  injurious 
to  the  character  of  an  individual  that  their  publication  would 
not  be  tolerated."1133  And  therefore  it  is  said,  "  There  is  no 
privilege  when  the  subject-matter  is  blasphemous  or  defamatory 
of  an  individual? nm  Thus  where  on  the  trial  of  Carlile  for 
publishing  Paine's  Age  of  Reason,  the  defendant  read  the  whole 
of  the  book  to  the  jury,  and  afterwards  his  wife  published  a  full 
report  of  the  trial,  containing  an  entire  copy  of  the  Age  of  Rea- 
son as  read  to  the  jury  ;  for  this  publication  a  criminal  informa- 
tion was  granted  against  Mrs.  Carlile,  the  court  observing  that 
although  as  a  general  proposition  it  was  certainly  lawful  to  pub- 
lish the  proceedings  of  courts  of  justice,  yet  it  must  be  taken  with 
this  qualification,  that  what  is  contained  in  the  publication  must 
neither  be  defamatory  of  an  individual,  tending  to  excite  dis- 
affection, nor  calculated  to  offend  the  morals  of  the  people.1137 
Although  in  the  course  of  a  trial  it  may  become  necessary  for 
the  purposes  of  justice  to  hear  or  read  matter  of  defamatory  or 
immoral  tendency,  it  is  not  yet  competent  to  any  person,  under 
the  pretence  of  publishing  that  trial,  to  re-utter  or  circulate 
such  matter.  It  is  observed  in  the  Sixth  Report  of  the  English 
Criminal  Law  Commissioners,  that  these  qualifications  destroy 
all  the  supposed  privilege.  Our  explanation  is  this :  Truth  is 
not  a  defence  to  a  criminal  prosecution  for  libel,  and  therefore 
where  a  report  of  a  trial  contains  blasphemous,  indecent,  or  de- 
famatory matter,  it  is  not  the  less  the  subject  of  a  criminal  prose- 
cution because  it  is  a  fair  or  true  report  of  a  judicial  proceeding. 
In  a  subsequent  case,1138  Maule,  J.,  said  :  "  I  think  it  is  impos- 
sible at  this  day  to  say  that  a  fair  account  of  proceedings  in  a 

1,84  Littledale,  J.,  Flint  v.  Pike,  4  B.  &  C.  473 ;  1  Stark.  Slan.  263. 

1135  Maule,  J.,  Hoare  v.  Silverlock,  9  C.  B.  20. 

1136  1  Stark.  Slan.  263. 

1137  Rex  v.  Carlile,  3  B.  A  Aid.  167. 

1138  Hoare  v.  Silverlock,  9  C.  B.  20. 

19 


290  DEFENCES. 

court  of  justice,  not  heing  ex  parte,  but  on  the  hearing  of  both 
sides,  is  not,  generally  speaking,  a  justifiable  publication.  I  do 
not  lay  it  down  as  a  universal  proposition  /  but  as  a  general 
rule,  it  may  be  assumed  that  the  publication  of  a  fair  account 
of  what  passes  in  a  court  of  justice,  not  ex  parte,  is  justifiable, 
unless  there  is  something  to  take  it  out  of  that  rule."  "  No 
case  has  decided  that  a  report  of  proceedings  in  a  court  of  jus- 
tice implicating  the  reputation  of  a  third  person  is  under  any 
[all]  circumstances  privileged."  1139  "  There  is  no  dictum  to  be 
met  with  in  the  books,  that  a  man,  under  the  pretence  of  pub- 
lishing the  proceedings  of  a  court  of  justice,  may  discolor  and 
garble  the  proceedings  by  his  own  comments  and  constructions, 
so  as  to  effect  the  purpose  of  aspersing  the  character  of  those 
concerned."1140  But  we  ought  to  protect  a  fair  and  hona  fide 
statement  of  the  proceedings  in  a  court  of  justice,1141  and  perhaps 
the  result *of  the  authorities  is  that :  a  fair  report  of  a  trial  or  a 
proceeding  in  a  court  of  justice,  conducted  publicly  in  the  pres- 
ence of  the  parties  concerned,  is  conditionally  privileged.1142 

§  230.  When  it  is  said  that  a  fair  report  of  a  trial  in  a  court 
of  justice  is  privileged,  what  is  meant  by  a  fair  report  ?  In  one 
case  it  is  said :  "If  a  party  is  to  be  allowed  to  publish  what  passes 
in  a  court  of  justice,  he  must  publish  the  whole  case,  and  not  mere- 
ly state  the  conclusion  which  he  himself  draws  from  the  evi- 
dence," 1143  and  where  in  a  report  of  proceedings  under  a  com- 
mission of  lunacy,  it  was  stated, "  The  plaintiff's  testimony,  being 
unsupported,  failed  to  have  any  effect  upon  the  jury,  *  *  Mr. 
Jervis  commented  with  cutting  severity  on  the  testimony  of  Mr. 

1139  Ryalh  v.  Leader,  1  Law  Rep.  298,  Ex. 

1140  Spencer,  J.,  Thomas  v.  Crosswell,  7  Johns.  264. 

1141  Ryalh  v.  Leader,  1  Law  Rep.  298,  Ex. 

1142  A  fair  account  of  what  takes  place  in  a  court  of  justice  is  privileged. 
Hearne  v.  btowell,  12  Adol.  &  El.  718;  4  Rer.  &  D.  696;  Turner  v.  Pxdlman,  6 
Law  Times  Rep.  N.  S.  130;  Rex  v.  Wright,  8  T.  R.  298;  Chambers  v.  Payne,  2 
C.  M.  &  R.  156;  Cincinnati,  &c.  Co.  v.  Timberlake,  10  Ohio,  K  S.  548;  Flint  v. 
Pike,  4  B.  &  C.  84;  Saunders  v.  Hills,  6  Bing.  213  ;  Lewis  v.  Levy,  1  El.  B.  <fc  E. 
537  ;  36  Law  Jour.  R.  282 ;  Q.  B.  Andrews  v.  Chapman,  3  C.  &  K.  286 ;  Smith  v. 
Scott,  2  C.  &  K.  580. 

1143  Abbott,  Ch.  J.,  Lewis  v.  Walter,  4  B.  &  A,  612. 


REPORTS  OF  JUDICIAL  PROCEEDINGS.  291 

O,"  the  statement  was  held  not  privileged,  and  it  was  said  that 
the  proceedings  themselves  ought  to  have  been  set  out,  not  merely 
the  result  of  them.1"4  Yet  again  it  has  been  said,  that  an  abridged 
report  may  be  a  "  fair  report," 1145  and  where  in  an  action  against 
the  publisher  of  a  newspaper  for  a  libel,  on  the  plea  of  not 
guilty,  it  appeared  that  the  libel  purported  to  be  the  account  of 
a  trial  of  a  former  action,  brought  by  the  present  plaintiff 
against  other  parties  for  a  libel,  and  after  stating  the  libel  in 
the  original  action,  and  the  facts  proved  by  the  then  defendants, 
and  the  summing  up  of  the  judge,  it  stated  that  the  jury  found 
a  verdict  for  the  plaintiff,  with  £30  damages.  No  evidence  was 
given  as  to  any  such  trial  having  taken  place  in  fact,  or  whether 
the  report  was  fair  or  not.  It  was  left  to  the  jury  to  say 
whether  the  report,  although  it  contained  some  allegations  in- 
jurious to  the  plaintiff,  was,  if  taken  altogether,  with  the  state- 
ment of  the  verdict  being  in  his  favor,  injurious  to  the  plaintiff 
on  the  face  of  it ;  and  the  jury  having  found  for  the  defendant, 
the  court  refused  a  rule  for  a  new  trial.1146  The  report  is  not 
privileged  if  it  in  anywise  discolors  or  garbles  the  proceedings, 
or  adds  [unwarranted]  comments  or  insinuations.1147    As  where 

1144  Roberts  v.  Brown,  10  Bing.  519 ;  4  M.  &  Se.  407  ;  and  see  Lelegal  v.  High- 
ley,  3  Bing.  N".  S.  950;  where  the  matter  complained  against  professed  to  be  a 
report  of  proceedings  in  a  court  of  justice,  did  not  profess  to  state  facts  as  deposed 
to  by  the  witness,  but  only  as  stated  by  the  counsel  for  the  prosecution — held 
not  to  be  a  fair  report,  and  not  privileged.  {Saunders  v.MUh,  6  Bing.  213.)  And 
where  the  report  stated  that  the  evidence  before  the  magistrate  entirely  negatived 
the  story  of  the  plaintiff,  which  story  was  the  statement  of  the  plaintiff  in  which 
the  imputed  perjury  was  contained, — Held  not  to  be  privileged  ;  and  a  plea  justi. 
fying  this  report  on  the  ground  that  it  was  a  fair  and  correct  report  of  the  pre- 
ceedings  which  had  taken  place,  was  held  bad  after  verdict.  {Lewis  v.  Levy,  1 
Ellis,  B.  <fc  E.  537.)  The  editor  of  a  newspaper  has  the  right  to  publish  the  fact 
that  an  individual  has  been  arrested,  and  upon  what  charge,  but  he  has  no  right, 
while  the  charge  is  in  the  course  of  investigation  before  the  magistrate,  to  assume 
that  the  person  accused  is  guilty,  or  to  hold  him  out  to  the  world  as  such.  ( Usher 
v.  Severance,  2  App.  9.) 

1145  Turner  v.  Sullivan,  6  Law  Times  Rep.  K  S.  130.     A  report  in  substance 
true,  it  seems  is  not  privileged.     Flint  v.  Pike,  4  B.  &  C.  473. 

1146  Chalmers  v.  Payne,  2  C.  M.  <fe  R.  156. 

1147  Thomas  \.  Crosswell,  7  Johns.  264;    Stiles  v.  Kokes,  7  East,  493;  S.  C.  sub 
nom.  Carr  v.  Jones,  3  Smith,  491 ;  Flint  v.  Pike,  4  B.&  C.  473. 


292  DEFENCES. 

the  report  was  headed  "  Shameful  conduct  of  an  attorney,"1148 
or  "  Extorting  money  to  hush  up  a  complaint,"  U49  or  "  Black- 
mailing by  a  policeman," 11S0  or  "  Horse-stealing," 1151  it  was  held 
not  to  be  privileged.  Where  a  statement  defamatory  of  the 
plaintiff  was  copied  from  a  previous  publication,  and  published 
by  the  defendant,  prefaced  by  the  word  "  Fudge,"  the  court 
left  it  to  the  jury  to  say  whether  that  word  was  added  to  vindi- 
cate the  character  of  the  plaintiff,  or  merely  to  create  an  argu- 
ment in  favor  of  the  defendant,  in  case  proceedings  should  be 
taken  against  him  for  the  publication.1152  In  another  case  the 
report  was  headed  "  Wilful  and  corrupt  perjury,"  and  it  was 
said  by  the  court  "  That  (the  heading)  is  merely  stating  the 
charge.  It  may  be  a  heading  entirely  innocent,  simply  indica- 
ting what  is  to  follow,  and  it  would  be  a  question  for  the  jury 
whether  it  is  a  fair  and  bona  fide  report  of  the  proceedings."1153 

§  231.  While  it  is  considered  a  principle  of  public  conven- 
ience to  allow  or  even  to  encourage  reports  of  the  proceedings  on 
a  trial,  reports  of  preliminary  proceedings  have  been  discouraged 
and  regarded  as  having  "  a  tendency  to  pervert  the  public  mind, 
and  to   disturb  the  course  of  justice."1154     In  England,  the 

1148  Clement  v.  Lewis,  3  Brod.  &  B.  297,  affirming  Lewis  v.  Clement,  3  B.  &  Aid. 
702. 

1149  Stanley  v.  Webb,  4  Sandf.  21. 

1160  Edsall  v.  Brooks,  17  Abb.  Pra.  R.  221 ;  26  How.  Pra.  R.  426. 
1151  Mountney  v.  Wotton,  2  B.  &  Ad.  673. 
11W  Hunt  v.  Algar,  6  C.  &  P.  245. 

1153  Leuns  v.  Levy,  1  Ell.  B.  &.  E.  537.  In  Barber  v.  Bennett,  MS.,  the  report  of 
a  proceeding  before  a  magistrate  was  headed  "  Suspicion  of  stealing  money." 
The  defence  was  a  fair  report,  and  on  demurrer  the  Superior-Court  of  New  York 
held  that  the  heading  did  not  prevent  the  report  being  a  privileged  publication. 

1154  L'd  Ellenborough,  King  v.  Fisher,  2  Camp.  563 ;  and  see  Charlton  v.  Wal- 
ton, 6  Car.  <fe  P.  385;  also  Rex  v.  Fleet,  1  B.  &  A.  379,  where  a  criminal  informa- 
tion was  granted  against  the  defendant  for  publishing  the  minutes  of  a  coroner's 
jnquest.  It  was  said  to  be  highly  criminal  to  publish  ex  parte  accounts.  Courts 
and  judicial  officers  have  always  claimed  and  exercised  the  right  to  dictate  whether 
or  not  the  proceedings  before  them  should  be  published.  In  the  time  of  Edward 
the  Third,  Lucius  de  Thacstead,  a  notary  public,  was  committed  to  the  Tower  for 
merely  attending  in  court  to  take  a  note  of  the  proceedings  between  Joannes  de 
Bourne  and  Ricardus  de  Potesgrave,  and  in  Flint  v.  Pike,  4  Barn.  <fe  C.  473,  Lit- 


REPORTS  OF  JUDICIAL  PROCEEDINGS.  293 

magistrate  has  the  power  of  conducting  preliminary  examina- 
tions privately,  and  a  report  of  such  a  proceeding  would  not  be 

tledale,  J.,  said  it  was  for  the  court  to  consider  whether  it  was  lawful  to  publish 
a  report  of  the  proceedings.  Lord  Eldon  interdicted  the  publication  of  the  pro- 
ceedings on  the  application  of  the  poet  Shelley  for  the  custody  of  his  children. 
(See  Memoir  of  Shelley,  by  T.  L.  Peacock,  and  Eraser's  Magazine,  No.  342, 361.)  So 
recently  as  A.  D.  1867,  a  justice  of  the  Superior  Court  of  the  City  of  New  York 
prohibited  the  publication  of  proceedings  had  before  him,  and  his  course  was  ap- 
proved by  the  other  justices  of  that  court.  A  coroner  may  prohibit  the  publica- 
tion of  proceedings  had  before  him  {Garrett  v.  Ferrand,  6  B.  <fe  C.  611),  and  so 
may  a  committing  magistrate.  {Cox  v.  Coleridge,  1  B.  &  C.  37.)  See  Borthwick  on 
Libel,  119,  121,  note  ;  Holt  on  Libel,  ch.  ix.  The  cases  are  more  numerous  where 
the  publication  of  the  proceedings  have  been  prohibited  pending  the  proceedings. 
A  disregard  of  such  a  prohibition  is  a  contempt.  In  one  case,  Lord  Eldon  remarked 
that  when  he  first  came  into  Westminster  Hall,  the  law  was  well  understood  that 
it  would  be  a  contempt  to  publish  the  proceedings  of  the  court  before  they  were 
finished.  {Knight  v.  Knight,  1  Jac.  &  Walk.  167.)  In  Hex  v.  Clement,  4  Barn.  <fc 
Aid.  218,  Lord  Tenterden  ordered  that  there  should  be  no  publication  of  the  pro 
ceedings  until  the  several  indictments  against  the  defendant  had  been  tried ;  and 
he  fined  a  newspaper  proprietor  £500  for  disobedience  to  this  order,  in  publishing  an 
account  of  the  first  trial  before  the  second  had  begun.  The  courts  upheld  the  action 
of  Lord  Tenterden.  Lord  Campbell,  in  his  Lives  of  the  Chief  Justices,  vol.  iii.  p. 
208,  gives  it  as  his  opinion  that  this  transaction  tarnished  the  fame  of  Lord  Ten- 
terden, and  that  the  order  forbidding  the  publication  was  "imprudently"  made. 
See  Hex  v.  Gilham,  1  M.  &  M.  165.  In  New  York,  by  statute  (2  Rev.  Stat.  278, 
§  10),  "  Publishing  a  false  or  grossly  inaccurate  report  of  the  proceedings  of  a 
court  of  record  is  a  criminal  contempt."  Any  publication  prejudicing  the  merits 
of  a  cause  before  it  is  heard  is  a  contempt.  (2  Atk.  479.)  The  validity  of  plain- 
tiff's marriage  coming  in  question  in  a  suit,  her  father,  pending  the  suit,  adver- 
tised in  a  newspaper,  offering  a  reward  to  anyone  who  would  produce  legal  proof 
of  the  marriage — held  a  contempt.  {Pool  v.  Sacheverel,  1  P.  Wms.  676.)  The 
printers  of  a  newspaper  were  committed  for  publishing  that  certain  parties  to  a 
suit  had  turned  "affidavit  men."  {Roach  v.  Garvan,  2  Atk.  469;  2  Dick.  794.) 
In  that  case  reference  was  made  to  the  case  of  a  printer  of  a  newspaper  punished 
for  publishing  of  a  certain  cause,  that  it  was  "  a  hue  and  cry  after  charitable  uses," 
and  to  the  case  of  Capt.  Perry,  punished  for  printing  and  publishing  his  brief 
before  the  cause  came  on.  A  party  was  committed  to  prison  for  publishing  an 
advertisement  reflecting  on  an  answer  in  the  cause.  (See  Cann  v.  Cann,  2  Dick. 
795;  2  Ves.  520;  Ex  parte  Crow,  2  Turn.  <fe  Ven.  Pra.  231,  232.)  Where  an  in- 
junction order  appointing  a  receiver  had  been  granted,  the  party  obtaining  the 
order  caused  printed  copies  of  it  to  be  dispersed  among  the  tenants,  to  prevent 
them  paying  rents  except  to  the  receiver ;  Lord  Hard  wick  refused  to  adjudge  it  a 
contempt,  but  expressed  his  disapproval  of  the  proceeding.  {Baker  v.  Hart,  2 
Atk.  488.)  Publishing  disparaging  comments  upon  the  court,  or  its  officers,  or 
its  proceedings,  is  a  eontempt.     Thus  the  New  York  Common  Council,  being  en- 


294:  DEFENCES. 

privileged.  But  if  a  preliminary  proceeding  is  carried  on  f  mi- 
bus  apertis,  it  would  be  privileged.     We  are  not  prepared  to  lay 

joined  by  a  preliminary  injunction  from  certain  official  action,  passed  resolutions 
declaring  the  injunction  illegal,  proclaiming  a  resolution  to  disregard  it,  and  im- 
puting dishonesty  to  the  judge  who  granted  it ;  held,  the  resolution  was  a  contempt. 
(  The  People  v.  Compton,  1  Duer,  512;  affirmed,  The  People  v.  Sturtevant,  9  N.  Y. 
263  ;  and  see  Morrison  v.  Moat,  4  Edw.  25.)  And  where  an  officer  of  a  corpora- 
tion had  a  verdict  against  him  in  an  action  for  a  malicious  prosecution,  which  ver- 
dict was  sustained  by  the  court,  the  corporation  voted  him  a  sum  of  money,  and 
passed  a  resolution  to  the  effect  that  in  instituting  the  prosecution  in  question  he 
had  been  actuated  by  motives  of  public  justice;  this  was  held  a  reflection  upon 
the  court,  and  a  contempt.  {Rex  v.  Watson,  2  Term  R.  199.)  Pending  the  trial 
of  one  Nixon,  in  the  Oyer  and  Terminer,  New  York  City,  April,  1864,  an  article 
appeared  in  the  New  York  Tribune,  headed,  "  A  judicial  outrage,"  and  which  was 
supposed  to  reflect  upon  the  conduct  of  the  judge  (G.  G.  Barnard)  presiding  on 
the  trial  of  Nixon.  The  article  was  supposed  to  have  been  written  by  Horace 
Greeley,  and  an  order  issued  for  him  to  show  cause  before  Judge  Barnard  why 
he  should  not  be  attached  for  contempt.  Instead  of  showing  cause,  he  moved  for 
a  writ  of  prohibition,  which  being  denied  the  following  order  was  made : 

"  In  the  Matter  of  Horace  Greeley  upon  an  Order  to  shoic  cause  why  he  should  not  answer 
for  a  Contempt  of  Court. — It  is  ordered  by  the  court,  that  the  said  Horace  Greeley,  now  here  ap- 
pearing by  I.  T.  Williams,  Esq. ,  his  counsel,  answer  (and  the  answer  under  oath  is  waived)  the  following 
interrogations,  and  have  until  Monday  next,  being  the  25th  day  of  April  inst.,  at  11  o'clock  A.  M.,  to 
file  answers  thereto,  and  be  then  heard  in  this  court  in  defence  of  the  accusation  that  he  published  a 
grossly  inaccurate  report  of  the  proceedings  of  this  court  in  the  Daily  Tribune  of  April  14,  1864,  in  the 
language  contained  in  and  recited  in  interrogatory  the  first. 

'■'■Interrogatory  the  First.— Did  you  write  in  manuscript  the  following  matter,  which  appeared 
in  page  4,  in  column  2  thereof,  in  the  New  York  Daily  Tribune  of  Thursday,  April  14, 1864,  to  wit? 

["  A  judicial  outrage."    Here  follows  the  article,  portions  of  which  contain  the  alleged  contempt.] 

"  Interrogatory  Second. — If  not,  did  you  write  in  manuscript  any  part  thereof? 

"Interrogatory  Third. — If  not,  did  you  see  the  same  in  manuscript  or  in  proof  before  it  was 
published? 

"  Interrogatory  Fourth. — If  not,  were  you  or  not  the  responsible  editor  of  the  Tribune  on  the 
14th  day  of  April,  1864  ? 

"Interrogatory  Fifth. — If  you  did  not  write  or  see  before  publication  the  said  matter,  do  you 
know  who  is  the  author,  or  writer,  or  composer  thereof,  or  did  you  not  know  that  it  was  to  be 
published  ? 

"Interrogatory  Sixth. — If  you  know  the  said  author  or  writer,  please  name  him. 

"Then  follows  a  statement  or  report  of  the  transactions  in  court,  which  were  reported  and  com- 
mented on  in  the  Tribune,  and  a  disclaimer  from  the  court  of  any  complaint  as  to  the  editorial  com- 
ments, but  only  as  to  what  purports  to  be  a  report  of  the  proceedings  in  court." 

To  these  interrogatories  Mr.  Greeley  made  and  filed  the  following  statement : 

"  Horace  Greeley,  in  the  above-entitled  proceedings  referred  to,  protesting  against  the  jurisdic- 
tion of  this  court  over  his  person,  and  over  the  proceedings  now  being  taken,  and  insisting  that  they 
are  irregular  and  without  warrant  of  law,  and  further  insisting  that  he  ought  not  to  be  asked,  and 
cannot  legally  be  compelled,  to  answer  questions  upon  a  charge  which  is  in  its  nature  criminal,  and 
for  which  he  may  be  exposed  to  indictment,  both  as  a  misdemeanor  for  a  contempt  as  well  as  for  a 
libel,  and  further  insisting  that  the  said  article,  in  the  order  to  show  cause  in  these  proceedings 
referred  to,  is  not  a  report  of  the  proceedings  of  a  court,  but,  on  the  other  hand,  is  simply  an  edito- 


REPORTS  OF  JUDICIAL  PROCEEDINGS.  295 

down  the  law  that  the  publication  of  preliminary  inquiries  be- 
fore magistrates  is  invariably  lawful,  but  we  are  not  prepared 
to  lay  down  the  law  that  the  publication  of  such  inquiries  is 
invariably  unlawful.  There  is  no  distinction  between  one  court 
and  another  as  respects  the  right  of  publishing  reports  of  their 
proceedings,  provided  the  proceedings  be  had  publicly,  and  not 

rial  criticism,  based  upon  a  report  of  such  proceedings  contained  in  a  newspaper  called  the  Evening 
Express,  published  two  days  before  said  editorial  article  was  published,  to  wit,  on  the  12th  day  of 
April  instant. 

"  For  answer  to  the  interrogatories  filed  arm  served  on  him,  says  that  he  is  now,  and  ever  since 
its  foundation  has  been,  the  principal  editor  of  the  newspaper  called  the  Tribune,  and  is  one  of  its 
proprietors,  by  being  a  stockholder  of  the  corporation  that  publishes  the  same.  That  as  such  editor 
and  proprietor  he  is  subject  to  all  the  responsibilities  that  justly  pertain  to  that  relation.  Believing 
that  this  avowal  is  a  substantial  answer  to  all  the  interrogatories  propounded  to  him,  he  most  respectr 
fully  declines  to  answer  any  questions  that  may  expose  any  of  his  associates  in  the  editorship  and 
publication  of  said  newspaper  to  the  discipline  of  this  tribunal,  preferring  to  abide  the  consequences, 
be  they  what  they  may." 

The  court  being  satisfied  that  no  disrespect  was  intended,  discharged  Mr. 
Greeley. 

As  to  contempts  by  publications  reflecting  on  courts,  etc.,  see  Re  Van  Hook,  3 
City  Hall  Recorder,  64 ;  Re  Spooner,  5  Id.  109 ;  Re  Strong,  Id.  9 ;  Re  Yates,  4  Johns. 
317;  6  Johns.  337;  Re  Eliz.  Mayer,  2  Barnard.  43;  Ex  parte  Jones,  13  Ves.  Jr. 
237;  Re  Crawford,  18  Law  Jour.  225,  Q.  B. ;  13  Jur.  955;  Ex  parte  Turner,  3 
Mont.  D.  &  G.  523 ;  Re  Van  Sandau,  1  De  Gex,  55 ;  Birch  v.  Walsh,  10  Ir.  Law 
R.  93;  Rexy.  Lee,  5  Esp.  123;  Rex  v.  Hart,  1  Camp.  359;  1  Hawk  PI.  Cr.  ch. 
73;  Moulton  v.  Clapham,  Sir  W.  Jones,  431;  March  on  Slander,  20;  Hollings- 
worth  v.  Duane,  Wallace's  R.  77;  Bayard  v.  Passmore,  3  Yeates,  438;  Respub- 
lica  v.  Oswald,  1  Dallas,  319;  Richmond  v.  Dayton,  10  Johns.  393;  Folger  v.  Hoog- 
land,  5  Johns.  235  ;  Re  Bronson,  12  Id.  460;  The  People  v.  Freer,  1  Cai.  485;  The 
People  v.  Few,  2  Johns.  290;  2  Stark.  Slander,  ch.  xiii. ;  Solicitor's  Journal,  1864, 
page  142  ;  An  Inquiry  into  the  Doctrine  lately  Propagated  concerning  Attach- 
ments for  Contempts,  <fec,  by  an  English  Constitution  Crown  Lawyer,  London, 
1769.  (Historical  Soc.  Lib.  N.  Y.)  See  a  pamphlet  entitled  Rights  of  Corpora- 
tions and  Reporters,  published  at  Columbia,  South  Carolina,  A.  D.  1857,  contain- 
ing the  report  of  the  case  of  Robert  W.  Gibbs  v.  Edward  I.  Arthur  and  John  Bur- 
dell.  The  City  Council  held,  in  1855,  a  public  meeting.  The  plaintiff,  the  editor 
of  one  of  the  city  papers,  being  present,  was  asked  by  the  mayor  whether  he  had 
come  to  take  notes  of  the  proceedings.  The  plaintiff  answering  in  the  affirmative, 
the  mayor  ordered  him  to  leave,  which  on  the  plaintiff's  refusing  to  do,  he  was, 
on  the  mayor's  orders,  ejected  by  a  police  officer.  The  plaintiff  sued  the  mayor 
and  the  officer,  and  the  defence  interposed  was  in  the  first  instance  that  the 
mayor  acted  on  a  resolution  of  the  City  Council  forbidding  the  presence  of  report- 
ers at  their  meetings,  and  subsequently  the  defence  was  set  up  that  tire  City 
Council  had  authorized  the  publication  of  their  proceedings  in  a  paper  other  than 
that  with  which  the  plaintiff  was  connected.  Both  these  defences  failed,  and  the 
plaintiff  recovered  damages  for  being  ejected. 


296  DEFENCES. 

ex  parte. n5S  And  where  a  preliminary  examination  is  publicly 
conducted,  in  the  presence  of  the  accused,  there  seems  to  be  no 
reason  why  the  same  rule  should  not  apply  to  such  a  proceed- 
ing as  to  a  trial.  No  privilege  can  be  claimed  for  a  report  of 
an  ex  parte  proceeding,1156  but  probably  it  is  now  settled  that  a 
fair  report  of  a  proceeding  before  a  magistrate,  not  being  ex 
parte,  is  privileged.  It  being  shown  that  the  proceeding  is  ju- 
dicial, in  a  public  court,  and  not  ex  parte,  a  fair  report  of  it  is 
privileged.  Thus,  in  an  action  for  libel,  it  appeared  that  the 
defamatory  matter  was  published  in  a  fair  report  of  proceedings 
before  two  judges  at  chambers,  on  applications  under  the  Bank- 
rupt Act,  5  &  6  Victoria,  chapter  122,  and  it  was  held  that  the 
proceeding  was  judicial,  and  the  report  privileged.1157  And  in 
respect  of  proceedings  in  jail  under  the  same  statute,  and  before 
a  registrar  in  bankruptcy,  it  was  held  that  the  jail  was  a  public 
court,  and  the  proceedings  judicial,  and  the  report  being  a  fair 
one,  was  privileged,  although  it  affected  a  person  not  a  party  to 
the  proceedings.1158  A  report  of  the  proceedings  before  a  grand 
jury  have  been  held  not  to  be  privileged.1159  The  register  of 
protests  of  bills  and  notes  in  Scotland,  established  by  statute, 
was  held  a  public  document,  to  which  every  one  had  a  right  of 
access,  and  the  publication  of  which  was  privileged.1160    Where 

1Kb  Lewis  v.  Levy,  36  Law  Jour.  R.  282,  Q.  B. ;  1  El.  B.  &  E.  537. 

use  polishing  the  contents  of  an  ex  parte  affidavit,  made  to  obtain  the  plain- 
tiff's arrest,  is  not  privileged  as  a  report  of  judicial  proceedings.  (Cincinnati, 
&c.,  Co.  v.  Timberlake,  10  Ohio,  N.  S.  548.)  Report  of  ex  parte  preliminary  pro- 
ceedings not  privileged.  Duncan  v.  Thwaites,  3  B.  &  C.  556 ;  5  D.  &  R.  447;  Rex 
v.  Lee,  5  Esp.  123;  Currie  v.  Walter,  1  B.  &  P.  523;  Huff  v.  Bennett,  4  Sandf. 
127  ;  Stanley  v.  Webb,  4  Sandf.  21 ;  8  N.  Y.  209 ;  Matthews  v.  Beach,  5  Sandf.  256; 
Hoare  v.  Silverlock,  9  C.  B.  20. 

1157  Simpson  v.  Robinson,  12  Adol.  &  El.  N.  S.  511 ;  Smith  v.  Scott,  2  Car.  &  K. 
580. 

1168  Ryalls  v.  Leader,  1  Law  Rep.  296,  Ex. 

1169  McCabe  v.  Cauldwell,  18  Abb.  Pra.  R.  377.  The  true  ground  for  this  decision 
was  that  a  proceeding  before  a  grand  jury  is  a  secret  ex  parte  proceeding,  although 
it  seems  to  rest  on  the  assumption  that  a  grand  jury  is  not  a  "judicial  body." 
As  to  report  of  a  coroner's  inquest,  see  East  v.  Chapman,  M.  &  M.  46.  The  pub- 
lication of  a  report  of  commissioners  appointed  to  inquire  into  corporations,  held 
not  to  be  privileged.     (Charlton  v.  Walton,  6  C.  &  P.  385.) 

1160  Fleming  v.  Newton,  1  CI.  &  Fin.  N.  S.  363. 


CHURCH    DISCIPLINE.  297 

one  who  had  been  convicted  of  murder  and  sentenced  to  death, 
while  on  the  scaffold  and  jnst  before  his  execution,  made  a 
speech,  in  which  he  reflected  upon  one  of  the  counsel  who  de- 
fended him  on  his  trial,  it  was  held  that  a  report  of  this  speech 
published  in  New  York  by  the  defendant,  in  a  newspaper  of 
which  he  was  editor,  was  not  privileged  either  at  common  law 
or  by  the  statute.1161 

§  232.  Where  the  judicial  proceeding  is  public,  and  not  ex 
parte,  the  report  of  what  takes  place  is  not  the  less  privileged 
because  published  pending  the  proceeding,  and  before  it  has 
terminated ;  thus  where  a  declaration  for  libel  set  out,  in  three 
separate  counts,  reports  of  three  separate  days'  proceedings, 
respectively,  (on  two  adjournments,)  before  a  magistrate  ;  the 
report  of  the  first  day  stating  that  the  plaintiff  was  charged 
with  perjury,  and  an  adjournment,  but  reserving  the  report ; 
the  report  of  the  second  day  also  stating  an  adjournment  in 
language  intimating  that  there  would  be  a  report  of  the  pro- 
ceedings of  the  day  to  which  the  adjournment  was ;  and  the 
third  stating  the  discharge  of  the  party  charged  ;  and  the  jury 
found  generally  that  the  reports  were  fair  and  correct.  Held, 
that  the  reports  of  the  first  two  meetings  did  not  lose  the  priv- 
ilege by  reason  of  the  proceedings  there  reported  not  being 
final.1162  And  in  the  same  case,  if  we  correctly  interpret  the  re- 
port, it  was  held  that  the  privilege  of  publishing  a  report  of  pre- 
liminary proceedings  is  not  lost  by  the  fact  that  the  proceeding 
terminates  in  the  discharge  by  the  magistrate  of  the  party  ac- 
cused. 

§  233.  By  becoming  a  member  of  a  church  the  individual 
tacitly  consents  to  submit  to  the  church  discipline.1163     The  pro- 

2161  Sanford  v.  Bennett,  24  N.  Y.  20.  If  a  highwayman  shall  at  the  gallows 
arraign  the  justice  of  the  law,  and  of  those  who  condemned  him,  he  who  publishes 
[the  highwayman's  language]  shall  not  go  unpunished.  (4  Read.  Stat.  Law,  154; 
Dig.  LL.  32.) 

1162  Liwis  v.  Levy,  1  El.  B.  &  E.  537. 

1,68 Remington  v.  Congdon,2  Tick.  310;  Jarvis  v.  Hathaway,  3  Johns.  180; 
Holt  on  Libel,  236;  Shelton  v.  Nance,  1  B.  Monr.  128;  Whiltaker  v.  Carter,! 
Ired.  461. 


298  DEFENCES. 

ceedings  of  the  church  .to  enforce  its  discipline  are  quasi  judi- 
cial, and  therefore  those  who  complain,  or  give  testimony,  or 
act,  or  vote,  or  pronounce  the  result,  orally  or  in  writing,  act- 
ing in  good  faith  and  within  the  scope  of  the  authority  con- 
ferred by  this  jurisdiction,  and  not  falsely  or  colorably  making 
such  proceedings  a  pretence  for  covering  an  intended  scandal, 
are  protected  by  law.1164  One  Miss  Mary  Jerom  was  the 
daughter  of  Quaker  parents,  and  she  was  educated  in  that  per- 
suasion. She  having  acted  in  disobedience  to  the  rules  of  the 
congregation,  by  frequenting  places  of  public  diversion  and 
otherwise,  she  was  warned  to  discontinue  such  practices,  where- 
upon she  absented  herself  from  the  meetings,  and  declared  that 
she  no  longer  regarded  herself  as  one  of  their  body.  After 
various  fruitless  attempts  to  reclaim  her,  the  society  proceeded 
in  the  usual  way  to  a  sentence  of  expulsion,  which  was  re- 
duced to  writing,  approved  at  a  monthly  meeting,  and  read  by 
the  defendant  Hart,  as  clerk  of  the  meeting,  at  a  subsequent 
meeting  for  worship.  This  sentence  of  expulsion  recited  that 
the  prosecutrix  was  born  of  Quaker  parents,  and  educated  in 
that  society,  but  that,  not  regarding  the  truth  they  professed, 
she  had  imbibed  erroneous  notions  ;  divers  part  of  her  conduct 
was  inconsistent  with  a  life  of  self-denial,  and  the  futile  at- 
tempts made  to  reclaim  her  ;  then  declared  her  not  a  member 
of  the  society,  until  by  repentance  she  acknowledged  scripture 
doctrine.  Miss  Jerom,  hearing  of  this  sentence,  sent  her  ser- 
vant to  the  defendant  for  a  copy,  which  he  sent  her  under 
cover.  After  failing  in  an  application  for  a  criminal  informa- 
tion, Miss  Jerom  procured  the  defendant  to  be  indicted,  tried, 
and  convicted,  for  libel.  On  motion  for  a  new  trial,  the  court 
held  that,  no  express  malice  being  shown,  the  jury  ought  to 
have  been  directed  to  acquit  the  defendant,  and  ordered  a  new 
trial.1165    A   vote  passed  by  a  board  of  trustees  of  a  church, 

1164  Farnsworth  v.  Storrs,  5  Cush.  412;  Fairchild  v.  Adams,  11  Cush.  549; 
Smith  v.  Youmans,  3  Hill  (So.  Car.)  85.  If  words,  actionable  in  themselves,  be 
spoken  between  members  of  the  same  church,  in  the  course  of  their  religious 
discipline,  and  without  malice,  no  action  will  lie ;  and  the  jury  are  to  decide 
whether  there  be  malice  or  not.     Jarvis  v.  Hathaway,  3  Johns.  180. 

"c5  Rex  v.  Hart,  1  W.  Blacks.  386;  2  Burns'  Eccles.  Law,  119. 


PUBLIC  MEETING.  299 

censuring  C,  a  former  treasurer  of  such  church,  for  obstinately 
retaining  the  church  funds  received  by  him  as  such  treasurer  in 
his  hands,  and  refusing  to  pay  them  over,  is  privileged ;  but  if 
published  maliciously,  will  support  an  action.1166  A  communica- 
tion of  a  church  member,  complaining  of  the  conduct  of  his 
clergy,  addressed  to  their  common  superior,  is  privileged.1167 
And  if  a  selectman,  acting  in  his  official  capacity,  accuse  a 
member  of  the  church  of  voting  twice  on  the  same  ballot,  it  is 
privileged.1168 

§  234.  The  privilege  extended  to  proceedings  to  enforce 
church  discipline,  applies  only  to  cases  where  both  parties  are 
members  of  the  church.  A  complaint,  to  a  church,  against 
one  of  its  members  by  one  who  is  not  a  member,  is  not  privi- 
leged ;  neither  would  such  a  complaint  by  a  member  against 
one  who  is  not  a  member,  be  privileged  ;1169  but  if  the  party  ac- 
cused voluntarily  submits  himself  to  the  discipline  of  the 
church,  all  the  proceedings  are  privileged.  Where  a  vote  of 
excommunication  from  a  church  has  been  passed,  and  the  of- 
fender thereby  declared  to  be  no  longer  a  member,  a  subse- 
quent reading  of  the  sentence  by  the  pastor,  in  the  presence  of 
the  congregation,  is  privileged.1171 

§  235.  The  publication  of  defamatory  matter  is  not  privi- 
leged, because  made  at  a  public  meeting.1172  But  at  meetings 
of  public  bodies,  having  certain  duties  to  perform,  what  is  said 

1166  Holt  v.  Parson,  23  Texas,  9.  In  an  action  for  libel,  the  defendant  pleaded 
that  the  words  were  used  without  malice,  in  a  complaint  to  a  church,  of  which 
both  parties  were  members,  for  the  purpose  of  bringing  the  plaintiff  to  trial  be- 
fore a  committee  thereof.  The  plaintiff  replied  that  the  charge  was  made  wil- 
fully and  maliciously ;  to  which  replication  the  defendant  demurred.  Held,  that 
the  replication  was  sufficient,  although  it  contained  no  averment  of  want 
of  probable  cause.     (Dial  v.  Holier,  6  Ohio  (N.  S.)  228.) 

1107  O'Donoghue  v.  McGovern,  23  Wend.  26. 

um  Bradley  v.  Heath,  12  Pick.  163. 

1103  Coombs  v.  Rose,  8  Blackf.  155. 

1170  Remington  v.  Congdon,  2  Pick.  310. 

1111  Farnsworthv.  Storrs,  5  Cush.  412. 

1119  Lewis  v.  Few,  5  Johns.  1;  Anthon,  15;  Davison  v.  Duncan,  1  El.  &  Bl. 
229  ;  3  Campbell's  Ch.  Justices,  64,  note. 


300  DEFENCES. 

in  the  exercise  of  such  duties,  pertinent  to  the  matter  in  hand, 
and  within  the  jurisdiction  of  the  meeting,  is  privileged.  This 
privilege  has  not,  it  would  seem,  always  been  recognized. 
Where,  at  a  meeting  of  a  board  of  public  officers,  the  commis- 
sioners of  the  New  York  Central  Park,  and  in  the  course  of  a 
debate  as  to  employing  the  plaintiff  to  do  certain  work  for  said 
commissioners,  the  defendant,  a  member  of  the  board,  objected 
to  the  employment  of  plaintiff  on  the  ground  that  he  had  pub- 
lished an  obscene  libel ;  held,  that  the  charge,  being  pertinent 
to  the  subject  under  discussion,  was  privileged,  and  to  entitle 
the  plaintiff  to  maintain  an  action  in  respect  of  it,  he  must  es- 
tablish that  the  charge  was  made  without  reasonable  or  proba- 
ble cause.1173  The  plaintiff  being  one  of  the  overseers,  and  the 
defendant  assistant  overseer  of  a  township,  a  rate  was  made  on 
a  railway  company,  against  which  they  appealed.  Shortly  be- 
fore the  hearing  of  the  appeal,  a  meeting  of  the  overseers  was 
called  to  consider  the  matter,  when  it  was  resolved  to  abandon 
the  rate,  and  a  vestry  meeting  was  called  to  choose  fresh  over- 
seers and  consider  the  propriety  of  removing  the  defendant 
from  his  office.  At  that  meeting  the  plaintiff  imputed  to  the 
defendant  neglect  of  duty  in  collecting  the  rates,  and  having 
made  a  rate  which  the  overseers  were  obliged  to  give  up,  to 
which  the  defendant  retorted  by  saying  that  the  plaintiff  had 
sold  the  rate-payers  to  the  railway  company,  and  had  received 
a  bribe  from  them  for  that  purpose.  After  the  meeting  a  per- 
son remarked  to  the  defendant  that  he  ought  not  to  have  said 
what  he  did  without  some  foundation  for  it ;  to  which  the  de- 
fendant replied  that  he  believed  there  was  reason  for  thinking 
that  the  plaintiff  had  had  communications  with  the  officers  of 
the  railway  company.  An  action  having  been  brought  for  the 
words  used  by  the  defendant  at  the  meeting,  query,  whether 
the  words  were  spoken  under  circumstances  which  rendered 
them  a  privileged  communication?  but  held,  assuming  they 

1173  Viele  v.  Gray,  10  Abb.  Pr.  R.  1 ;  18  How.  Pr.  R.  550.  At  a  meeting  of 
tbe  proprietors  of  a  fishery,  a  charge  made  by  one  proprietor  against  another, 
of  having  violated  the  law  regulating  the  fishery,  was  held  to  be  privileged. 
(Be?inett  v.  Barr,  8  Law  Times  Rep.  N.  S.  857.) 


REPORTS  OF  PUBLIC  MEETINGS.  301 

were,  there  was  evidence  of  malice  proper  to  be  left  to  the 
jury.1174  But  it  was  held  not  to  be  a  justification  of  a  charge 
of  official  misconduct  against  a  town  officer  that  the  charge 
was  made  in  open  town  meeting,  by  the  defendant,  an  inhab- 
itant of  the  town,  while  animadverting  on  the  conduct  of  the 
plaintiff  as  such  officer,  relative  to  a  subject  then  before  the 
meeting,  in  which  the  defendant  was  interested  as  a  qualified 
voter.1175  And  where  a  resolution  introduced  into  a  county 
medical  society,  for  the  expulsion  of  a  member,  upon  the  ground 
that  he  had  procured  his  admission  by  false  pretences,  and  with- 
out the  legal  qualifications,  was  held  not  to  be  privileged,  be- 
cause the  society  had  no  power  to  expel  a  member  for  such  a 
cause.1176  Where  the  defendant,  one  of  the  selectmen  of  the 
town,  while  he  was  acting  as  a  public  officer,  and  at  an  election 
in  an  open  town  meeting,  charged  the  plaintiff  with  having 
put  two  votes  into  the  ballot-box,  it  was  held  that  the  charge 
was  privileged,  principally  on  the  ground  that  the  defendant 
had  a  duty  to  perform,  and  that  the  charge  was  made  in  the 
performance  of  his  duty.1177 

t 
§  236.  Nor  is  the  publication  of  defamatory  matter  privi- 
leged because  made  in  a  true  report  of  the  proceedings  of  a 
public  meeting,  for  "  there  is  no  analogy  between  the  proceed- 
ings at  a  public  political  meeting,  and  the  proceedings  in  a 
court  of  justice ;  " 1178  and  therefore  it  has  been  held  that  a  pub- 
lication of  defamatory  matter  made  in  a  report  of  proceedings 
at  a  public  meeting  called  to  petition  parliament  against  making 
a  grant  in  support  of  a  Roman  Catholic  college,  was  not  privi- 
leged.1179    And  where  the  defamatory  matter  was  contained  in 


1174  Senior  v.  Medland,  4  Hurl.  &  N.  843. 
1,75  Dodds  v.  Henry,  9  Mass.  262. 

1176  Fancett  v.  Charles,  13  Wend.  473. 

1177  Bradley  v.  Heath,  12  Pick.  163. 

1178  Lewis  v.  Few,  5  Johns.  1.  We  understand  that  the  legislature  of  Wiscon- 
sin has  recently  passed  a  law  declaring  true  reports  of  proceedings  at  public 
meetings  privileged,  and  a  bill  for  the  like  purpose  is  now  before  the  British 
parliament. 

11,9  Hearne  v.  Stoioell,  12  Adol.  &  El.  719;  4  Per.  &  D.696. 


302  DEFENCES. 

a  report  of  the  proceedings  of  a  vestry  meeting,  it  was  held 
not  to  be  privileged;  thus,  an  English  statute  18  and  19 
Vict.  ell.  120,  provided  for  the  appointment  of  a  medical  officer 
in  each  parish,  who  was  to  report  from  time  to  time  to  the  ves- 
try, and  such  reports  were  to  be  published  annually,  in  the 
month  of  June.  A  report  was  made  to  the  vestry  in  February, 
and  in  the  same  month  published  by  the  defendant  in  a  news- 
paper of  which  he  was  the  editor  and  proprietor,  in  and  as  part 
of  the  proceedings  of  the  vestry.  This  report  contained  a 
charge  of  misconduct  on  the  part  of  the  plaintiff ;  he  sued  the 
defendant  for  libel,  and  it  was  held  that  the  publication,  being 
a  true  report  of  what  took  place  at  the  vestry,  did  not  render 
it  privileged.1180  But  in  another  case,  a  report  of  the  condition 
of  town  schools,  made  and  published  as  required  by  law,  by 
the  superintending  school  committee,  and  charging  the  pruden- 
tial committee  of  the  district  with  unlawfully  employing  a 
teacher,  and  putting  her  in  charge  of  a  school,  taking  posses- 
sion of  the  school-house,  and  forcibly  excluding  the  general 
committee  and  the  teachers  employed  by  them,  but  not  im- 
puting corrupt  motives,  hel^l  privileged.1181  And  so  it  was 
held  that  the  publication,  by  a  member  of  the  Massachusetts 
Medical  Society,  of  a  true  account  of  the  proceedings  of  that 
society  in  the  expulsion  of  another  member  for  a  cause  within 
its  jurisdiction,  and  of  the  result  of  certain  suits  subsequently 
brought  by  him  against  the  society  and  its  members,  on  account 
of  such  expulsion,  is  privileged  ;  although  it  speaks  of  the  ex- 
pelled member  as  "  the  offender,"  and  remarks  that  "  the  so- 
ciety has  vindicated  its  action  in  this  case,  and  its  right  to  act 
in  all  parallel  cases.1182 

§  237.  The  right  to  seek  redress  is  not  limited  to  seeking  it 
in  a  court  of  justice.1183     Every  one  who  is  aggrieved,  or  who 

1180  Popham  v.  Pickburn,  7  Hurl.  <fe  N.  891.  Query,  would  the  publication 
have  been  privileged  had  it  been  made  by  the  defendant  after  the  report  had 
been  published  by  the  vestry,  as  required  by  the  statute  ?    (Id.) 

1181  Shattuck  v.  Allen,  4  Gray,  540 ;  and  see  Haight  v.  Cornell,  15  Conn.  74. 
1183  Barrow  v.  Bell,  1  Gray,  301. 

1168  Padmore  v.  Lawrence,  11  Adol.  &  El.  380;  3  Per.  &  D.  209;  Kiney.  Sew- 
ell,  3  M.  &  W.  297 ;  liobinson  v.  May,  2   Smith,  2.     Semble,  that  words  spoken 


SEEKING  REDRESS  OTHERWISE  THAN  JUDICIALLY.       303 

lias  reasonable  and  probable  canse  to  believe  himself  aggrieved, 
may,  in  good  faith,  seek  redress  from  any  body,  officer  or  per- 
son t  having  jurisdiction,  power,  or  authority  to  redress  the 
wrong  or  supposed  wrong.  Whatever  is  spoken  or  written  in 
such  a  pursuit  for  redress  is  privileged.  For  defamatory  mat- 
ter published  in  seeking  relief  other  than  from  a  court  of  jus- 
tice, the  action  is  said  to  be  analogous  to  an  action  for  mali- 
cious prosecution,  with  a  distinction  or  supposed  distinction 
which  may  be  illustrated  as  thus :  that  redress  for  malicious 
prosecution  cannot  be  had  in  an  action  in  form  for  slander  or 
libel  [§  220],  while  for  defamatory  matter  published  in  seeking 
redress  from  any  source  other  than  a  court  of  justice,  redress 
may  be  had  in  the  form  of  an  action  for  slander  or  libel,  with 
the  additional  allegation,  either  that  the  application  was  with- 
out reasonable  or  probable  cause,  or  in  bad  faith  [maliciously], 

to  a  police  officer  engaged  in  an  endeavor  to  detect  a  crime,  are  privileged. 
{Smith  v.  Kerr,  1  Barb.  155.  See,  however,  Dancaster  v.  Hewson,  2  M.  &  R. 
176.)  Plaintiff  assaulted  the  defendant  on  the  highway;  defendant,  meeting  a 
constable,  requested  him  to  take  charge  of  the  plaintiff,  and  the  constable  refus- 
ing to  arrest  the  plaintiff  unless  the  defendant  would  charge  him  with  felony, 
the  defendant  did  so ;  held,  on  demurrer  to  the  defendant's  plea  setting  up  these 
circumstances,  that  they  did  not  render  the  charge  of  felony  a  privileged  publica- 
tion. (Smith  v.  Hodgkins,  Cro.  Car.  276 ;  and  see  Allen  v.  Crofoot,  2  Wend.  515; 
Lathrop  v.  Hyde,  25  Wend.  448.)  In  Johnson  v.  Evans,  3  Esp.  32,  plaintiff,  a  fe- 
male, had  been  in  the  employ  of  defendant,  and  on  discharging  her,  some  differ- 
ence arose,  the  defendant  charging  the  plaintiff  with  endeavoring  to  cheat  him 
respecting  her  wages,  and  said,  "  She  is  a  thief,  and  tried  to  rob  me  of  part  of 
her  wages."  Defendant  sent  for  a  constable  to  give  plaintiff  in  charge,  and  re- 
peated these  words  to  the  constable,  but  did  not  give  plaintiff  in  charge ;  the 
only  publication  proved  was  to  the  constable,  and  plaintiff  was  nonsuited.  In 
an  action  of  slander  against  the  defendant,  for  charging  the  plaintiff  with  theft, 
where  it  appeared  that  the  words  spoken  were  only  expressions  of  suspicion, 
founded  upon  facts  detailed  by  him  at  the  time,  made  prudently  and  in  confi- 
dence to  discreet  persons,  in  good  faith,  with  a  view  to  their  aiding  him  to  de- 
tect the  offender  and  recover  the  property  stolen,  it  was  held  that  they  were  not 
slanderous,  but  justifiable  and  proper.  (Grimes  v.  Coyle,  6  B.  Monr.  301.)  The 
defendant  having  some  cause  to  suspect  the  plaintiff  of  dishonesty,  went  to 
plaintiff's  relations  and  made  to  them  a  charge  of  theft  against  the  plaintiff;  and 
it  appearing  that  the  object  in  making  the  communication  was  rather  to  compro- 
mise the  felony  than  to  promote  inquiry,  or  to  enable  the  relations  to  redeem  the 
plaintiff's  character,  the  publication  was  held  not  privileged.  (Hooper  v.  Trus- 
cott,  2  Bing.  N.  R.  457.) 


304  DEFENCES. 

or  was  made  to  a  forum  not  having  jurisdiction  of  the  subject- 
matter  ;  or,  again  as  thus  :  to  an  action  in  form  of  slander  or 
libel,  it  is  a  defence  merely  to  show  the  publication  was  made 
to  a  court  of  justice,  but  it  is  not  a  defence  merely  to  show  that 
the  publication  was  made  upon  an  application  for  redress  other 
than  to  a  court  of  justice,  unless  it  be  also  shown  that  the 
forum  addressed  had  jurisdiction  and  the  application  was  hon- 
estly made — *.  e.  in  good  faith  and  with  reasonable  and  prob- 
able cause.  To  support  malicious  prosecution,  besides  showing 
that  the  prosecution  has  terminated,  it  must  be  shown  that  the 
publication  was  without  probable  cause  and  with  malice,  i.  e. 
bad  motive ;  bad  motive  alone  will  not  support  the  action  if 
there  was  probable  cause ;  while  to  support  an  action  for  a 
publication  in  seeking  redress  extra-judicially,  it  is  sufficient  to 
show  either  want  of  jurisdiction  in  the  forum  addressed,  or 
want  of  probable  cause  or  bad  motive  ;  for  the  right  to  appeal 
to  a  court  of  justice  is  general  and  without  reference  to  the  mo- 
tive wherever  probable  cause  exists  ;  but  the  right  to  such  re- 
lief, extra-judicially,  is  limited  to  seeking  it  with  probable  cause 
and  with  a  good  motive.  In  a  case  where  the  defendant  had 
written  defamatory  matter  to  the  superior  of  the  plaintiff,  an 
ecclesiastic,  it  was  alleged  in  the  complaint  that  the  publication 
was  made  maliciously  ;  the  plea  was  in  effect  merely  that  the 
publication  was  made  in  seeking  redress  from  an  officer  having 
jurisdiction  to  grant  relief.  On  demurrer,  the  plea  was  over- 
ruled, and  it  was  held  that  to  constitute  a  defence,  the  plea 
should  have  gone  on  and  alleged  reasonable  and  probable  cause 
for  making  the  complaint,  and  that  it  was  made  with  good  mo- 
tives.1184 It  has  been  held  that  an  action  of  libel  is  not  main- 
tainable in  respect  of  detamatory  matter  contained  in  a  peti- 
tion to  the  sovereign,1185  or  to  parliament,1186  or  to  the  legisla- 
ture,1187 or  to  the  lieutenant-governor  of  a  province  (Canada),1188 

1184  In  OBonaghue  v.  McGovern,  23  Wend.  26,  and  in  Perkins  v.  Mitchell,  31 
Barb.  461 ;  a  distinction  is  made  between  a  complaint  made  to  a  court  of  justice 
and  a  complaint  made  elsewhere. 

1185  Hare  v.  Mellor,  3  Lev.  138. 

1186  Lake  v.  King,  1  Lev.  240,  and  ante,  note  1087. 

1187  Reid  v.  JDelorme,   2  Brevard,  76. 

1188  Stanton  v.  Andrews,  5  Up.  Can.  Q.  B.  Rep.  211,  0.  S. 


SEEKING  REDRESS  OTHERWISE  THAN  JUDICIALLY.         305 

or  to  the  governor  of  a  State.1189  Nor  can  an  action  of  libel  be 
maintained  for  defamatory  matter  contained  in  a  memorial  pre- 
sented to  a  board  of  excise,1190  or  in  a  petition  to  a  council  of 
appointment  praying  the  removal  of  the  plaintiff  from  office ; im 
or  in  a  memorial  to  the  Post-office  Department  charging  fraud  on 
the  plaintiff,  a  successful  bidder  for  post-office  patronage ; 1192  or 
in  letter  to  the  Secretary  of  War,  with  the  intent  to  prevail  on 
him  to  exert  his  authority  to  compel  the  plaintiff  (an  officer  in 
the  army)  to  pay  a  debt  due  from  him  to  defendant ; 1198  or  in  a 
letter  to  the  superior  officer  of  the  plaintiff,  having  power  to 
remove  him,  and  charging  him  with  fraud  in  his  office  ; 1194  or 
in  a  letter  written  to  a  bishop  informing  him  that  a  report  was 
current  in  a  parish  in  his  diocese,  that  the  plaintiff,  the  incum- 
bent of  a  district  in  that  parish,  had  assaulted  a  schoolmaster.1195 
So  no  action  for  slander  or  libel  can  be  maintained  for  charges 
preferred  to  a  lodge  of  Odd  Fellows  by  one  member  of  that 

1189  Gray  v.  Pentland,  2  S.  &  R.  23 ;  4  Id.  420. 

1190  Vanderzee  v.  McGregor,  12  Wend.  545. 

1191  Thorn  v.  Blanchard,  5  Johns.  508.  Where  the  complaint  is  to  a  person 
competent  to  redress  the  grievance,  no  action  lies  against  the  publisher,  whether 
his  statement  be  true  or  false,  or  his  motives  innocent  or  malicious.  (Id.)  See 
Harrison  v.  Bush,  32  Eng.  Law  &  Eq.  R.  173  ;  5  El.  &  Bl.  344;  Harris  v.  Har- 
rington, 2  Tyler,  129. 

1192  Cook  v.  Hill,  3  Sandf.  341.  A  letter  of  complaint  written  to  the  Postmas- 
ter General,  bona  fide,  of  even  imaginary  grievances,  would  be  privileged ;  and 
the  defendant,  under  the  general  issue,  may  show  that  it  was  written  under  such 
circumstances  as  would  make  it  a  protected  communication.  ( Woodward  v.  Lan- 
der, 6  C.  &  P.  548.) 

1193  Fairman  v.  Ives,  5  B.  &  A.  643  ;  1  D.  &  R.  252. 

1194  Howard  v.  Thompson,  21  Wend.  319 ;  Blake  v.  Pilford,  1  M.  «fe  Rob.  198. 
A  petition  of  parties  interested,  to  the  proper  authorities,  against  the  appoint- 
ment of  one  on  the  ground  of  his  bad  character,  as  disqualifying  him  for  the  ap- 
pointment, is  not  actionable  as  a  libel.  (Harris  v.  Harrington,  2  Tyler,  129.)  A 
letter  from  an  inhabitant  of  a  school  district,  to  the  school  committee,  complain- 
ing of  a  school  teacher,  is  conditionally  privileged.  (Bodwell  v.  Osgood,  3  Pick. 
379  ;  and  see  Maitland  v.  Bramwell,  2  Fost.  <fe  F.  623.) 

n95  James  v.  Boston,  2  C.  <fe  K.  4.  If  written  merely  with  the  honest  intention 
of  calling  the  attention  of  the  bishop  to  a  rumor  in  the  parish,  which  was  bring- 
ing scandal  on  the  church,  and  not  from  any  malicious  motive ;  and  it  is  not  ma- 
terial that  the  writer  of  the  letter  did  not  live  in  the  district  to  the  incumbent  of 
which  the  letter  refers.  (Id.)  And  see  ODonaghue  v.  McGovern,  23  Wend.  26. 
20 


306  DEFENCES. 

lodge  against  another,  and  for  an  offence  which  the  lodge  under 
its  rules  had  the  right  to  investigate.1196  The  trustees  of  the 
College  of  Pharmacy  in  New  York,  appointed  a  committee  to 
inquire  and  report  upon  the  capacity  of  the  plaintiff  as  drug 
inspector  of  the  port  of  New  York,  with  a  view  upon  the  facts 
reported  to  petition  for  the  removal  of  the  plaintiff  from  his 
office.  The  committee  made  a  written  report  to  the  board  of 
trustees,  who  forwarded  it  to  the  Secretary  of  the  Treasury, — 
held  that  the  report  was  privileged.1197  The  defendant,  the 
deputy-governor  of  Greenwich  Hospital,  wrote  and  printed  a 
large  volume,  containing  an  account  of  the  abuses  of  the  hos- 
pital, and  reflecting  with  much  asperity  upon  many  of  its  offi- 
cers ;  he  distributed  copies  of  this  book  to  governors  of  the 
hospital  only  ;  an  application  for  a  criminal  information  against 
the  defendant  was  denied,  with  the  observation  that  the  distri- 
bution had  been  only  to  persons  competent  to  redress  the  griev- 
ances complained  of.1198 

§  238.  The  condition,  or  one  of  the  conditions,  upon  which 

1196  Streety  v.  Wood,  15  Barb.  105.  Where  A.  accused  B.  of  theft  before  certain 
members  of  a  lodge  of  Odd  Fellows,  of  which  both  were  members,  and  in  an 
action  for  slander  by  A.,  B.  attempted  to  justify  what  he  said,  by  showing  that  it 
was  the  duty  of  Odd  Fellows  to  keep  their  lodge  pure,  the  justification  was 
held  to  be  insufficient.  (Holmes  v.  Johnson,  11  Tred.  55.)  Defendant,  who  was  a 
sergeant  in  a  volunteer  corps,  of  which  p'aintiff  also  was  a  member,  represeute.i 
to  the  committee  by  whom  the  general  business  of  the  corps  was  conducted,  that 
plaintiff  was  an  unfit  person  to  be  permitted  to  continue  a  member  of  the  corps  ; 
that  he  was  the  executioner  of  the  French  king,  <fcc.  Lord  Ellenborough  held 
the  communication  privileged.     (Barbaud  v.  Hookhnm,  5  Esp.  109.) 

1197  Van  Wyck  v.  Aspinwall,  1*7  N.  Y.  190,  affirming  S.  C.  sub  nam.  Van 
Wyck  v.  Chithrk,  4  Duer,  268  :  and  see  Haight  v.  Cornell,  15  Conn.  74. 

1198  Rex  v.  Baillie,  21  State  Trials,  1 ;  Andr.  229.  In  another  case  the  plaintiff 
had  been  a  general  commanding  a  corps  of  irregular  troops  during  the  war  in 
the  Crimea.  Complaint  having  been  made  of  the  insubordination  of  the  troops, 
the  corps  commanded  by  the  plaintiff  was  placed  under  the  superior  command  of 
V.  The  plaintiff  then  resigned  his  command,  and  V.  directed  S.  to  inquire  and 
report  on  the  state  of  the  corps,  and  referred  S.  to  the  defendant  for  information. 
Defendant,  in  a  conversation  with  S.,  made  a  defamatory  statement  in  respect  to 
the  plaintiff  on  his  giving  up  the  command  of  his  corps ;  held  that  it  was  properly 
left  to  the  jury  to  say  whether  the  communication  was  relevant  to  the  inquiry. 
(Beatson  v.  Skene,  5  Hurl.  &  N.  838.)     See  Dickson  v.  Earl  Wilton,  1  F.  <fe  F.  419. 


SEEKING  REDRESS  OTHERWISE  THAN  JUDICIALLY.       307 

the  privilege  now  under  consideration  exists,  is  that  the  body, 
officer,  or  person  appealed  to  has  jurisdiction,  power,  or  author- 
ity to  grant  the  relief.  This  is  stated  in  nearly  all  of  the  cases 
cited  to  the  last  preceding  section  [§  237].  In  addition  to 
those  cases  we  refer  to  a  case  where  the  defendant,  a  physician 
gave  a  certificate  that  the  plaintiff  was  insane,  on  which  to 
base  proceedings  under  a  statute  to  have  the  plaintiff  confined 
in  an  asylum ;  for  the  charge  contained  in  this  certificate  the 
plaintiff  brought  an  action  against  the  defendant,  and  it  was 
held  that  he  could  justify  only  by  showing  that  the  provisions 
of  the  statute  under  which  the  certificate  purported  to  have 
been  given  had  been  strictly  complied  with.  And  by  the 
court,  "  Where  one  intervenes  voluntarily  in  a  special  proceed- 
ing not  known  to  the  common  law,  and  not  resulting  in  a  judg- 
ment according  to  its  forms,  he  must  see  that  jurisdiction  is  ac- 
quired, and  that  there  is  in  reality  a  proceeding  in  court,  before 
he  can  claim  any  privilege."1199  A  letter  written  to  the  Secre- 
tary of  State,  complaining  of  the  conduct  of  the  plaintiff  as 
clerk  to  a  board  of  magistrates,  was  held  not  to  be  privileged 
because  addressed  to  an  officer  not  having  power  to  redress  the 
wrong  complained  of.1200  The  case  lastly  referred  to  was  affirmed 
in  the  Exchequer  Chamber,  but  in  a  subsequent  case  it  is  said 
that  a  communication  made  bond  fide  for  the  purpose  of  ob- 
taining redress,  is  privileged  though  made  to  a  tribunal  having 
no  direct  authority  in  respect  of  the  matter  complained  of,  as 

HOT  perJdns  v.  Mitchell,  31  Barb.  461  ;  and  see  Hosmer  v.  Loveland,  19  Barb. 
111. 

1200  Blagg  v.  Sturt,  10  Q.  B.  899  ;  11  Jur.  181;  8  Law  Times,  135;  16  Law- 
Jour.  39,  Q.  B.  In  an  action  for  libel  it  appeared  that  the  defendant  had  lodged 
at  the  plaintiff's  house,  and  on  leaving  missed  a  memorandum  book  and  other 
articles,  whereupon  he  wrote  a  letter  to  the  plaintiff's  wife,  in  which  he  accused 
the  plaintiff  of  havinjj;  taken  the  missing  articles,  and  threatened  to  expose  him 
if  he  did  not  return  them ;  the  jury  found  that  there  was  no  malice  in  fact, — 
Held,  nevertheless,  that  sending  the  letter  to  the  wife  was  not  a  privileged  pub- 
lication— she  had  no  authority  or  power  to  redress  the  supposed  wrong.  ( Wen- 
man  v.  Ash,  22  Eng.  Law  &  Eq.  R.  509 ;  13  C.  B.  836;  22  Law  J.  Rep.  (N.  S.) 
C.  P.  190;  17  Jur.  579;  1  Com.  Law  Rep.  592.)  A  letter  written  merely  confi- 
dentially is  not  thereby  privileged.  (Brooks  v.  Blanchard,  1  Cr.  &  M.  779;  3 
Tyrw.  844.) 


308  DEFENCES. 

where  the  plaintiff  was  a  justice  of  the  peace  for  the  county, 
and  in  the  habit  of  acting  at  petty  sessions  held  in  a  borough. 
The  defendant,  an  elector  and  inhabitant  of  the  borough, 
signed  a  memorial  addressed  to  the  Secretary  of  State  for  the 
Home  Department,  complaining  of  the  conduct  of  plaintiff  as 
a  justice  during  an  election  for  a  member  to  represent  the  bor- 
ough in  parliament,  and  praying  that  he  would  cause  an  in- 
quiry to  be  made  into  the  conduct  of  plaintiff,  and  that  on  the 
allegations  contained  in  the  memorial  being  substantiated,  he 
would  recommend  to  her  Majesty  that  plaintiff  be  removed 
from  the  commission  of  the  peace.  The  jury  having  found 
that  the  memorial  was  bondjide,  it  was  held  that  it  was  a  priv- 
ileged communication,  inasmuch  as  plaintiff  had  both  an 
interest  and  a  duty  in  the  subject-matter  of  the  communica- 
tion ;  and  the  Secretary  of  State  had  a  corresponding  duty,  a 
justice  of  the  peace  being  appointed  and  removed  by  the  sov- 
ereign.1201 

§  239.  Where  the  privilege  now  under  consideration  may  be 
exercised  by  word  of  mouth,  orally,  it  also  may  be  exercised  by 
writing  ;  unless,  perhaps,  where  it  is  shown  that  it  is  exercised 
by  writing  rather  than  orally  to  serve  some  unworthy  purpose  ; 
thus  where  an  alleged  libel  consisted  of  charges  made  by  the 
defendant  against  the  plaintiff,  a  constable,  contained  in  a  letter 
to  a  meeting  of  rate-payers,  it  was  held  that  inasmuch  as  the 
charge,  if  made  orally,  would  have  been  privileged,  it  was  privi- 
leged when  made  in  writing,  unless  the  plaintiff  could  estab- 
lish that   the   defendant   wilfully  absented  himself  from  the 

1201  Harrison  v.  Bush,  32  Eng.  Law  <fe  Eq.  R.  1Y3  ;  and  see  Fairman  v.  Ives, 
5  B.  &,  A.  643 ;  1  D.  &  R.  252.  In  Rex  v.  Bayley  (3  Bac.  Abr.  tit.  Libel,  A  2, 
cited  5  B.  &  A.  647),  the  defendant  had  addressed  a  letter  to  General  Willes  and 
the  four  principal  officers  of  the  guards,  to  be  by  them  presented  to  the  King, 
stating  that  the  prosecutor  had  obtained  from  him  [defendant]  a  warrant  for  the 
payment  of  money  due  him  [defendant]  from  the  government  under  promise  of 
paying  the  defendant  such  money,  and  that  the  prosecutor  had  received  the  mon- 
ey and  not  paid  it  over  to  defendant.  The  court  held  this  not  a  libel,  but  a  rep- 
resentation of  an  injury  shown  up  in  a  proper  way  for  redress ;  yet  neither  the 
officers  nor  the  King  could  give  the  defendant  direct  assistance  in  obtaining  pay- 
ment of  the  money  wrongfully  withheld. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  309 

meeting  as  a  pretence  for  writing.1202  So  where  the  defendant 
is  privileged  to  present  a  petition  or  memorial  for  redress,  he 
does  not  forfeit  his  privilege  by  presenting  the  petition  or  me- 
morial to  different  individuals  to  obtain  their  signatures  there- 
to, nor,  as  it  seems,  by  printing  such  petition  or  memorial,  pro- 
vided the  presenting  for  signatures  or  the  printing  be  done 
with  a  bond  fide  intent  to  carry  out  the  purpose  of  the  petition 
or  memorial,  and  not  otherwise.1203 

§  240.  Every  one  has  the  right  to  publish  all  that  he  has 
reasonable  and  probable  cause  to  believe  necessary  to  protect 
his  person,  his  property,  or  his  reputation  from  loss  or  injury. 
As  where  the  defendant  advertised  that  his  wife  had  eloped 
from  him,  and  cautioned  all  persons  from  trusting  her,  a  mo- 
tion for  a  criminal  information  against  him  for  making  this 
publication  was  denied,  because  the  advertisement  was  the  only 
means  he  could  adopt  to  protect  himself.1204  So  where  A.,  who 
had  dealt  with  the  defendant,  a  butcher,  suddenly  ceased  to 
deal  with  him,  alleging  as  a  reason  that  defendant  had  made 
charges  against  him,  A.,  for  meat  which  had  not  been  deliv- 
ered at  A.?s  house,  the  defendant  wrote  a  letter  to  A.,  protest- 
ing his  innocence  of  the  alleged  overcharge,  and  stating  in 
effect  that  the  meat  had  been  improperly  disposed  of  by  the 
defendant's  servants.      For  writing  this  letter,  the  plaintiff — 

1202  Spencer  v.  Ameston,  1  M.  <fc.  Rob.  470. 

1203  Vanderzee  v.  McGregor,  12  Wend.  455 ;  Cook  v.  Hill,  3  Sandf.  341 ;  Rex  v. 
Baillie,  21  State  Trials,  1;  Andr.  229;  Van  Wyck  v.  Aspinwall,  11  N.  Y.  190. 
and  ante,  note  1198.  Where  in  an  action  of  slander  against  the  defendant,  a  sur- 
veyor, employed  by  a  committee  to  investigate  the  truth  of  reports  against  the 
plaintiff,  as  having  executed  improperly  contract  work  for  them,  which  the  de- 
fendant alleged  on  such  inquiry  to  be  the  case,  held  that  such  report  was  not  a 
privileged  communication,  it  being  found  by  the  jury  that  the  reports  originated 
with  the  defendant  and  were  false.  (Smith  v.  Matthews,  2  M.  &  Malk.  151.)  An 
officer  of  the  navy  has  no  right  to  make  communications,  except  to  the  govern- 
ment, upon  subjects  with  which  he  becomes  acquainted  in  his  professional  ca- 
pacity ;  and,  therefore,  a  letter  written  to  Lloyd's  Coffee-house,  about  the  con- 
duct of  the  captain  of  a  transport-ship,  by  a  lieutenant  who  was  superintendent 
on  board,  was  held  not  to  be  a  privileged  communication.  (Harwood  v.  Green, 
2  Car.  &  P.  141  ;  and  see  Robinson  v.  May,  2  J.  P.  Smith,  3.) 

1204  Rex  v.  Enes,  Andr.  229,  and  see  ante,  §  226 ;  and  Koenig  v.  Ritchie,  3  Fost. 
<fe  F.  413. 


310  DEFENCES. 

whose  wife  was  a  servant  in  the  family  of  A. — brought  an  ac- 
tion for  libel ;  it  was  held  that  if  by  the  letter  the  defendant 
meant  bond  fide  to  defend  himself,  it  was  a  conditionally  privi- 
leged publication;1205  and  where  Q.,  having  had  no  previous 
knowledge  of  B.,  a  trader,  sold  him  goods  to  the  amount  of 
£62  10*.,  at  two  months'  credit, — upon  going  to  B.'s  shop  at 
the  expiration  of  the  credit,  A.  found  that  the  whole  stock  in 
trade,  including  a  portion  of  the  goods  sold  by  him,  had  been 
sold  by  auction  the  previous  day,  by  B.'s  desire,  and  at  a  reduc- 
tion of  30  per  cent.,  and  that  the  proceeds  were  in  the  hands 
of  S.,  the  auctioneer.  Upon  inquiry,  A.  could  not  learn  where 
B.  was  to  be  found.  He  thereupon  went  to  his  attorneys,  and 
they,  on  his  behalf,  served  on  S.  a  notice  not  to  part  with  the 
proceeds  of  the  sale,  the  said  B.  having  committed  an  act  of 
bankruptcy.  B.  had,  in  fact,  committed  no  act  of  bankruptcy, 
the  goods  having  been  sold  for  the  purpose  of  his  retiring  from 
business.  Held,  by  Tindal,  C.  J.,  Coltman,  J.,  and  Erie,  J. 
(Cresswell,  J.,  dissentiente),  that  A.  had  such  an  interest  in 
serving  the  notice  as  to  render  it  a  privileged  communication, 
if  it  was  served  with  good  faith  and  under  the  bond  fide  be- 
lief that  B.  had  committed  an  act  of  bankruptcy.1206  Where 
the  defendant  published  an  advertisement  as  follows :  "  Ten 
guineas  reward.  Whereas,  by  a  letter  received  from  the  West 
Indies,  an  event  is  stated  to  be  announced  by  a  newspaper  that 
can  only  be  investigated  by  these  means, — this  is  to  request 
that  if  any  person  can  ascertain  that  J.  D.  (the  plaintiiF,  de- 
scribing him)  was  married  previous  to  9  a.  m.  on,  &c,  and  will 
give  notice  to  J.  (the  defendant),  he  shall  receive  the  reward," 
— held  that  if  the  publication  was  with  the  bond  fide  view  of 
finding  out  the  fact  referred  to,  it  was  privileged,  and  the  jury 
found  a  verdict  for  the  defendant.1207  And  where  the  libel  was 
contained   in   an   advertisement  stating  the  issuing  of  process 

1205  Coward  v.  Wellington,  9  C.  «fc  P.  531. 

1206  Blackham  v.  Pugh,  15  Law  Jour.  Rep.  290,  C.  P. ;  2  C.  B.  611. 

1207  Delany  v.  Jones,  4  Esp.  191.  In  Lay  v.  Lawson,  4  Adol.  &  El.  198,  L'd 
Denman,  referring  to  Delany  v.  Jones,  said,  "  I  have  great  doubt  whether,  there, 
the  interest  which  the  wife  had  in  the  inquiry  could  justify  the  offering  a  reward 
in  a  newspaper."     See  Finden  v.  Westlake,  1  Mo.  &  Malk.  461. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  311 

against  the  plaintiff,  and  that  he  could  not  be  found,  and  offer- 
ing a  reward  for  such  information  as  should  enable  him  to  be 
taken  ;  plea,  that  a  capias  had  been  issued  and  delivered  to  the 
sheriff,  and  that  the  plaintiff  kept  out  of  the  way,  and  that  the 
advertisement  had  been  inserted  at  the  request  of  the  party- 
suing  out  the  writ,  to  enable  the  sheriff  to  arrest ;  held  a  suffi- 
cient defence.1208 

§  241 .  Every  one  who  believes  himself  to  be  possessed  of 
knowledge  which,  if  true,  does  or  may  affect  the  rights  and  in- 
terests of  another,  has  the  right,  in  good  faith,  to  communicate 
such  his  belief  to  that  other.  He  may  make  the  communica- 
tion with  or  without  any  previous  request,  and  whether  he  has 
or  has  not  personally  any  interest  in  the  subject-matter  of  the 
communication,  and  although  no  reasonable  or  probable  cause 
for  the  belief  may  exist.  The  right  is  founded  on  the  belief. 
If  A.  believes  that  B.  is  or  is  intending  to  rob  C,  he  has  the 
right  to  communicate  his  belief  to  C,  without  waiting  for  C. 
to  inquire  on  the  subject ;  and  if  in  so  doing  he  injures  B.,  B. 
is  without  redress.  The  exigencies  of  society  require  that  such 
a  right  should  exist.  A.'s  duty  to  B.  is  simply  not  unneces- 
sarily to  injure  him.  This  right  must  be  exercised  as  every 
other  right  is  required  to  be  exercised,  in  good  faith  [§  40] ; 
and  all  communications  made  in  the  exercise  of  this  right  are 
conditionally  privileged  [§  209].1209     The  existence  of  this  right, 

130B  Lay  v.  Lawson,  4  Ad.  &  El.  795. 

1209  p-or  wor(js  «  spoken  in  good  faith,  to  those  who  have  an  interest  in  the 
communication,  and  a  right  to  know  and  act  upon  the  facts  stated,"  no  action 
can  be  maintained  without  proof  of  express  malice.  (Shaw,  C.  J.,  Bradley  v. 
Heath,  12  Pick.  163.)  [If  the  words  are  spoken  in  good  faith,  no  malice  can  be 
proved.  To  prove  malice  would  be  to  prove  that  the  words  were  not  spoken  in 
good  faith.]  The  law  respects  communications  made  in  confidence,  notwith- 
standing they  may  be  false  and  erroneous,  and  prove  injurious  to  the  party. 
This  rule  applies  equally  to  words  written  and  spoken.  Note  to  Wyatt  v.  Gore, 
Holt's  N.  P.  299 ;  and  see  ante,  note  1202.  And  one  part  of  a  publication  may 
be  privileged,  because  made  to  a  person  interested,  and  another  part  not  privi- 
leged; thus  where  plaintiff  and  defendant  were  jointly  interested  in  property  in 
Scotland  of  which  C.  was  manager,  defendant  wrote  to  C.  a  letter,  principally 
about  the  property  and  the  conduct  of  the  plaintiff  with  reference  thereto,  and 


312  DEFENCES. 

as  will  presently  be  shown,  in  cases  where  the  communication 
is  made  by  one  having  no  personal  interest  in  the  subject- 
matter  of  the  communication,  and  without  any  previous  re- 
quest has  been  questioned,  nevertheless  we  feel  justified  in  la}r- 
ing  it  down  for  law  that  the  right  exists  as  well  where  there  is 
not  as  where  there  is  a  previous  request,  and  whether  the  pub- 
lisher has  or  has  not  any  such  personal  interest.  The  right,  as 
we  conceive,  in  no  wise  depends  either  upon  the  fact  of  a  pre- 
vious request  or  upon  the  interest  of  the  publisher,  although 
the  fact  that  the  communication  is  made  officiously,  as  it  is 
termed,  i.  e.  unsolicited,  or  by  one  having  no  interests  involved, 
may  in  some  cases  have  a  tendency  to  disclose  the  motive  of 
the  publisher  in  making  the  publication.  The  right,  where 
the '  publisher  is  interested,  or  where  the  communication  is 
made  upon  the  request  of  the  party  in  interest,  seems,  never  to 
have  been  doubted  ;  -thus  where  the  language  published  im- 
puted habits  of  intemperance  to  the  plaintiff,  a  dissenting  min- 
ister, was  held  privileged  because  spoken  in  answer  to  in- 
quiries.1210 So  a  letter  written  to  persons  who  employed  A.  as 
their  solicitor,  conveying  charges  injurious  to  his  professional 
character  in  the  management  of  certain  concerns  which  they 
had  entrusted  to  him,  and  in  which  B.,  the  writer  of  the  letter, 
was  likewise  interested,  was  held   to  be  a  privileged  publica- 


containing  a  charge  against  the  plaintiff  with  reference  to  his  conduct  to  his 
mother  and  his  aunt;  held,  that  so  much  of  the  letter  as  related  to  the  property 
was  privileged,  but  the  remainder  was  not.  (Warren  v.  Warren,  1  Cr.  M.  &  R. 
250.)     And  see  Humphreys  v.  Stillwell,  2  Fost.  &  F.  590. 

1210  Warr  v.  Jolly,  6  C.  &  P.  497.  A  communication  made  bona  fide  upon  any 
subject-matter  in  which  the  party  communicating  has  an  interest,  or  in  reference 
to  which  he  has  a  duty,  is  privileged,  if  made  to  a  person  having  a  correspond- 
ing interest  or  duty,  although  it  contains  criminatory  matter  which  without  this 
privilege  would  be  slanderous  and  actionable.  (Harrison  v.  Bush,  5  El.  &  Bl. 
344;  32  Eng.  Law  &  Eq.  R.  173.)  Where  a  party  has  a  mutual  interest  with 
another,  he  is  justified  in  prevailing  on  him  to  become  party  to  a  suit,  and  ex- 
pressions of  angry  and  strong  animadversion  on  the  conduct  of  the  party  im- 
peached, unless  malicious,  are  privileged ;  and,  in  the  case  of  words,  the  jury 
merely  take  into  consideration  the  whole  conversation,  to  see  whether  particular 
words,  which  may  be  actionable  in  themselves,  are  qualified  so  as  not  to  convey 
the  primary  meaning.     (Shipley  v.  Todhunter,  7  C.  &  P.  680.) 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  313 

tion.1211  And  where  A.,  being  tenant  of  B.,  was  desired  by  B. 
to  inform  him  if  he  saw  or  heard  anything  respecting  the  game, 
A.  wrote  a  letter  to  B.,  informing  B.  that  his  game-keeper  (the 
plaintiff)  sold  game, — held,  that  if  A.  had  been  so  informed, 
and  believed  the  fact  so  to  be,  this  was  a  privileged  communi- 
cation, and  that  the  game-keeper  could  not  maintain  any 
action  for  libel.1212  So  where  the  plaintiff  had  requested  his 
friend  R.  A.  to  open  a  correspondence  with  the  defendant  in 
reference  to  certain  charges  made  by  the  defendant  concerning 
the  plaintiff,  held  that  letters  written  by  the  defendant  to  R.  A. 
were  privileged  communications.1213  But  where  in  an  action 
for  libel  it  appeared  that  the  plaintiff  was  churchwarden  and 
defendant  clergyman  of  the  same  parish,  and  that  differences 
having  arisen  between  them  in  that  relation,  the  plaintiff  re- 
quested that  the  defendant's  future  communications  should  be 
by  letter  to  the  plaintiff's  clerk.  The  defendant  afterwards 
applied  by  letter  to  the  clerk  for  rent  which  he  conceived  to  be 
due  him  from  the  plaintiff.  The  clerk  answered  that  defend- 
ant denied  his  liability,  and  in  reply  the  defendant  wrote  the 
clerk,  "  This  attempt  to  defraud  me  of  the  produce  of  the  land 
is  as  mean  as  it  is  dishonest," — held  that  the  communication 
was  not  privileged  in  itself;  that  it  was  a  question  for  the  jury 
whether  the  language  was  justified  by  the  occasion,  but  that  the 
judge  was  right  in  directing  the  jury  that  the  communication 
was  actionable.1214  An  attorney  having  at  plaintiff's  desire 
written  the  defendant  demanding  payment  of  an  alleged  debt, 
the  defendant  sent  a  letter  to  the  attorney  containing  gross  im- 
putations on  the  plaintiff 's  character,  wholly  unconnected  with 
the  demand  made  upon  him ;  held  not  a  privileged  communica- 

J2U  On  the  trial  a  juror  was  withdrawn.   McDougall  v.  Claridge,  1  Camp.  267. 

1212  Cockayne  v.  Hodgkissorl,  5  C.  &  P.  543. 

1213  Hopwood  v.  Thorn,  8  C.  B.  293. 

1214  Tuson  v.  Evans,  3  Per.  &  D.  396.  Where,  in  an  action  for  defamation,  it 
appears  that  a  defendant,  authorized  by  his  relation  to  the  party  addressed  to 
make  a  "privileged  communication,"  in  professing  to  do  so  makes  a  false  charge, 
the  inference  of  malice  is  against  him,  and  the  burden  is  put  on  him  to  show 
that  he  acted  bona  fide.  ( Wakefield  v.  Smithwick,  4  Jones'  Law  (N.  C),  327 ;  and 
eee  Cole  v.  Wilson,  18  B.  Monr.  212.) 


314  DEFENCES. 

tion,  although  the  jury  found  that  the  letter  was  written  bona 
fide,  and  negatived  malice  in  fact.1215  A.,  the  plaintiff,  was 
party  to  a  suit  in  chancery  by  B.,  his  next  friend,  who  was  an- 
swerable for  the  costs  of  the  suit.  A.  expressed  a  desire  to 
change  his  solicitor  in  that  suit,  which  coming  to  the  knowl- 
edge of  the  defendant,  he  wrote  a  letter  to  B.,  in  which, 
amongst  other  things,  he  stated  that  A.  had  been  apprenticed 
to  a  civil  engineer,  and  had  had  a  present  made  him  of  his  in- 
dentures, because  he  was  worse  than  useless  in  the  office ;  in  ac- 
tion of  libel  by  A.,  held  that  the  letter  was  a  privileged  pub- 
lication.1216 The  owner  of  a  building  which  has  been  set  on 
fire  may  caution  the  persons  employed  by  him  therein  against 
a  particular  person,  suspected  of  being  the  incendiary ;  and  his 
statements  to  them,  if  made  in  good  faith  for  this  purpose,  are 
privileged  communications,  although  they  contain  an  unfounded 
criminal  charge  against  the  suspected  person.1217  An  insurance 
company,  of  which  the  defendant  was  president,  made  an  in- 
surance against  fire  on  the  property  of  one  Graves  in  the  oc- 
cupation of  the  plaintiff ;  an  application  was  made  to  the  com- 
pany to  alter  the  policy  ;  the  application  was  refused,  and  no- 
tice given  that  the  policy  would  be  cancelled.  Graves  inquired 
the  reason  for  this,  and  was  told  by  the  defendant  that  the  com- 
pany would  not  insure  any  building  occupied  by  plaintiff,  as  a 
building  insured  by  the  company  and  occupied  by  the  plaintiff 
had  been  burned  under  very  suspicious  circumstances,  adding, 
"  What  would  you  think  of  a  man  being  seen  round  the  store  at 
two  or  three  o'clock  in  the  morning  before  the  fire  % "  this  was 
held  to  be  a  privileged  communication.1218  The  defendant  had 
the  right  to  give  to  Graves  a  reason  for  the  company  refusing 
to  insure  the  building  owned  by  him,  and  Graves  was  interested 
to  know  the  opinion  the  defendant  entertained  concerning  the 
plaintiff.  So  where  the  plaintiff  was  secretary  of  the  Brewers' 
Insurance  Company,  and  he  being  charged  with  misconduct 

1216  Huntley  v.  Ward,  6  C.  B.  N".  S.  514;  and  see  ante,  note  1200. 

1216  Wright  v.  Woodgate,  Tyr.  &  Gr.  12. 

1217  Lawler  v.  EarU,  5  Allen,  22. 

1216  Liddle  v.  Hodges,  2  Bosw.  537,  affirmed  18  N.  Y.  48. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  315 

was  called  upon  to  attend  a  board  of  directors,  for  the  purpose 
of  explanation,  but  declined  to  do  so ;  whereupon  the  direc- 
tors, after  hearing  the  charges,  passed  a  resolution  that 
he  had  been  guilty  of  gross  misconduct,  and  dismissed  him. 
The  defendant,  a  director  of  that  company  and  also  of  the  Lon- 
don Necropolis  Company,  of  which  the  plaintiff  was  auditor, 
communicated  the  fact  of  the  plaintiff's  dismissal  "  for  gross 
misconduct "  at  a  board  meeting  of  the  latter  company,  and 
proposed  a  resolution  to  dismiss  him,  and  in  answer  to  an  in- 
quiry from  the  chairman,  said  that  the  misconduct  consisted  in 
"  obtaining  money  from  the  solicitors  of  the  company  under 
false  pretences,  and  paying  a  debt  of  his  own  with  it ;  "  in  an  ac- 
tion for  slander  it  was  held  that  the  publication  was  condition- 
ally privileged.1219  The  defendant  being  a  competitor  with  the 
plaintiffs  for  a  contract  with  the  Navy  Board  for  African  tim- 
ber, the  plaintiffs  obtained  the  contract.  Defendants  then 
agreed  to  supply  plaintiffs  with  a  portion  of  the  timber,  and 
made  no  objection  to  taking  their  bills  in  payment.  After- 
wards this  agreement  was  rescinded,  and  defendant  wrote  to  a 
merchant  who  was  to  supply  the  timber  to  carry  out  the  agree- 
ment, and  of  whom  the  defendant  was  a  creditor,  and  the  sole 
correspondent  in  London,  reflecting  on  the  plaintiff 's  mercan- 
tile character,  and  putting  said  merchant  on  his  guard  against 
them.  In  an  action  for  libel  in  making  this  communication,  a 
verdict  having  been  found  for  the  defendant  on  the  ground  of 
privilege,  the  court  granted  a  new  trial.1220  The  plaintiff  was 
a  dealer  in  beer,  buying  it  of  a  brewer  and  selling  it  to  publi- 
cans. Plaintiff  wishing  to  open  an  account  with  the  defend- 
ant, a  brewer,  one  L.,  became  his  [plaintiff's]  surety  for  the 
price  of  such  beer  as  defendant  should  from  time  to  time  sup- 
ply to  plaintiff,  he  [defendant]  promising  to  inform  L.  of  any 

1218  Harris  v.  Thompson,  13  C.  B.  329  ;  24  Eng.  Law  &  Eq.  R.  370. 

iMo  War(i  v-  Smith,  6  Bing.  749.  In  Van  Spike  v.  Qleyson,  Cro.  Eliz.  541,  it  is 
said  not  to  be  actionable  for  one  man  to  tell  another  confidentially  not  to  trust  an- 
other, if  done  only  by  way  of  counsel.  Words  of  a  tradesman  that  he  would 
soon  be  a  bankrupt,  when  spoken  in  confidence  and  friendship  as  a  caution,  held 
not  to  be  actionable  unless  the  jury  found  there  was  malice.  (Herver  v.  Dowson, 
Bull.  N.  P.  8.) 


316  DEFENCES. 

default  made  by  plaintiff  in  his  payments.  After  plaintiff  and 
defendant  had  dealt  together  for  some  time,  defendant  went  to 
L.  and  spoke  in  very  abusive  terms  of  plaintiff,  saying  he 
wished  to  cheat  him,  and  that  he  had  returned  as  unmerchant- 
able, beer  he  [plaintiff]  had  adulterated,  and  that  he  was  a 
rogue,  &c.  At  this  time  there  was  a  balance  due  defendant 
from  plaintiff  for  beer,  in  respect  of  which  L.  was  liable  on  his 
guarantee.  Lord  Ellenborough  inclined  to  think  the  communi- 
cation conditionally  privileged ;  he  refused,  however,  to  non- 
suit the  plaintiff,  and  a  juror  was  withdrawn.1221  Plaintiff  was 
engaged  to  superintend  the  works  of  a  railway  company,  and 
subsequently,  at  a  general  meeting  of  the  proprietors,  the  en- 
gagement was  not  continued,  but  a  former  inspector  was  rein- 
stated. Afterwards  a  vacancy  occurred  in  the  situation  of  en- 
gineer to  the  commissioners  for  improving  the  river  Wear,  and 
the  plaintiff  became  a  candidate.  The  defendant  wrote  to  C, 
introducing  D.  as  a  candidate,  and  C.  having  written  defend- 
ant informing  him  that  another  person  [the  plaintiff]  had  suc- 
ceeded in  obtaining  the  appointment,  the  defendant  wrote  an 
answer  to  C.  reflecting  on  the  conduct  of  the  plaintiff  whilst 
superintendent  of  the  railway  works.  It  appeared  that  de- 
fendant and  C.  were  both  shareholders  in  the  railway  company, 
and  that  defendant  managed  C.'s  affairs  in  the  railway.  Held, 
not  a  privileged  publication.1222  A  party  is  justified  in  giving 
his  opinion  bond  fide  of  the  respectability  of  a  tradesman  in 
answer  to  an  inquiry  concerning  him  /  m3  thus  it  is  said  that 
the  owner  of  a  public-house  cannot  maintain  an  action  against 
a  neighboring  publican  for  giving  a  bad  character  of  such 
house  to  a  person  who,  being  in  treaty  for  purchasing  it,  applied 
to  the  defendant  for  information,  provided  (as  is  stated)  there  is 
some  evidence  of  the  truth  of  the  assertion.1224     In  an  action 


1221  Dunham  x.  Bigg,  3  Camp.  260  ;  and  see  Rex  v.  Jenneaur,  3  Bac.  Abr.  tit. 
Libel,  452;  2  Brownl.  151 ;  2  Burns' Eccles.  Law,  179;  Wilson  v.  Stephenson,  2 
Price,  282. 

1222  Brooks  v.  Blanchard,  1  Cr.  &  M.  779. 

1223  Storey  v.  Challands,  8  C.  &  P.  234 ;  otherwise  where  there  is  no  inquiry. 

{Id.) 

1224  Humber  v.  Ainge,  Manning's  Index,  tit.  Libel,  pi.   13.     Where  a  person 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  3 17 

for  slander  by  the  plaintiffs,  bankers  at  M.,  the  charge  was  that 
in  answer  to  a  question  from  one  Watkins,  whether  he  [defend- 
ant] had  said  that  plaintiffs'  bank  had  stopped,  defendant's  an- 
swer was,  "  It  was  true ;  he  had  been  told  so."  The  proof  was 
that  Watkins  met  defendant  and  said,  "  I  hear  that  you  say  the 
bank  of  B.  &  S.  [plaintiffs]  has  stopped.  Is  it  true  ?  "  De- 
fendant answered,  "  Yes,  it  is ;  I  was  told  so,"  and  added,  "  It 
was  so  reported  at  C,  and  nobody  will  take  their  bills,  and  I 
have  come  to  town  in  consequence."  Watkins  said,  "  You  had 
better  take  care  what  you  say ;  you  first  brought  the  news  to 
town,  and  told  Mr.  John  Thomas  of  it."  Defendant  repeated, 
"  I  was  told  so."  It  further  appeared  that  defendant  had  in 
fact  been  told  there  was  a  run  on  plaintiffs'  bank,  but  not  that 
it  had  stopped  or  that  nobody  would  take  the  plaintiffs'  bills. 
It  was  held  on  the  trial  that  the  publication  of  the  words  al- 
leged was  proved,  and  the  jury  were  instructed  that  if  they 
thought  the  words  were  not  spoken  maliciously,  the  defendant 
ought  to  have  a  verdict.  The  jury  found  for  the  defendant.  On 
plaintiffs'  motion  a  new  trial  was  ordered.  On  granting  the 
new  trial,  the  court  discussed  at  length  the  question  of  malice, 
and  the  supposed  distinction  between  malice  in  fact  and  malice 
in  law,  and  stating  that  there  was  no  instance  of  a  verdict  for 
the  defendant  on  the  ground  of  want  of  malice,  held  that  in- 
stead of  instructing  the  jury  that  if  the  words  were  not  spoken 
maliciously  they  should  find  for  the  defendant,  it  should  have 
been  left  to  the  jury  as  a  previous  question  whether  the  defend- 
ant understood  Watkins  as  asking  for  information  for  his  own 
guidance,  and  that  defendant  spoke  what  he  did  merely  out  of 
honest  advice  to  regulate  the  conduct  of  Watkins,  then  the 
question  of  malice  in  fact  would  have  been  proper  as  a  second 
question  to  the  jury,  if  their  minds  were  in  favor  of  the  defend- 
ant upon  the  first.     *     *     In  granting  a  new  trial  the  court 


authorized  to  make  a  privileged  communication  stated  false  matter,  and  the  court 
left  it  to  the  jury  to  say  whether  "  In  communicating  what  he  had  heard  and  be- 
lieved to  be  true,"  he  acted  in  good  faith,  and  there  was  no  evidence  that  he  had 
heard  anything,  nor  none  as  to  how  he  believed,  it  was  held  to  be  error.  ( Wake- 
field v.  Smithwick,  4  Jones'  Law  (N.  O),  32V.) 


318  DEFENCES. 

does  not  mean  to  say  that  it  may  not  be  proper  to  put  the 
question  of  malice  as  a  question  of  fact  for  the  consideration  of 
the  jury;  for  if  the  jury  should  think  that  when  Watkins 
asked  his  question  the  defendant  understood  it  as  asked  to  obtain 
information  to  regulate  his  [Watkins']  conduct,  it  will  range 
under  the  cases  of  privileged  communication,  and  the  question 
of  malice  in  fact  will  then  be  a  necessary  part  of  the  jury's  in- 
quiry ;  but  it  was  not  left  to  the  jury  to  consider  whether  the 
question  was  understood  by  the  defendant  as  an  application  for 
advice,  and  if  not  so  understood  the  question  of  malice  was 
improperly  left  to  the  jury.1225  Where  a  party  interested  in  a 
building  contract,  on  which  the  plaintiff  had  been  engaged, 
applied  to  the  defendant  to  recommend  a  surveyor  to  meas- 
ure the  work,  when  the  defendant  stated  that  he  had  seen  the 
plaintiff  take  away  some  of  the  materials,  upon  which  the 
plaintiff's  employer  applied  to  the  defendant  if  he  had  seen  the 
plaintiff  taking  them  away,  when  he  alleged  that  he  had  seen 
the  plaintiff  taking  them,  and  that  he  hallooed  to  him ;  held, 
that  the  judge  properly  directed  the  jury  to  say,  first,  whether 
the  words  imputed  felony  ;  and  secondly,  that  even  if  they  did 
the  plaintiff  was  not  entitled  to  recover,  unless  malice  were  ex- 
pressly shown,  or  the  jury  believed,  from  the  circumstances, 
that  the  defendant  was  actuated  by  malicious  motives.1226 
Where  A.  had  sold  goods  to  B.,  and  afterwards  and  before  the 
delivery  of  the  goods,  C,  without  being  asked  or  solicited  in 
any  way  to  do  so,  made  representations  to  A.  injurious  to  the 
credit  of  B.  The  representations  were  held  not  to  be  privi- 
leged, because  made  without  any  previous  request.122''  And 
where  A.,  seeing  that  apartments  were  to  let  at  a  house  occu- 
pied by  B.,  inquired  who  was  the  landlord  of  C.  (a  neighbor  of 
B.'s) ;  C.  told  him,  and  added  that  B.  had  not  paid  his  rent, 
and  that  if  A.  moved  in  his  goods  they  would  be  seized.  B. 
having  sued  C.  for  slander,  the  judge,  at  the  trial,  told  the  jury 
"  he  thought  it  was  a  privileged  communication  by  C,  unless 

1226  Bromage  v.  Prosser,  4  B.  &  C.  247 ;  6  Dowl.  &  R.  296. 

1226  Kine  v.  Sewell,  3  M.  <fc  W.  291. 

1227  King  v.  Watts,  8  C.  &  P.  614 ;  and  see  Pattison  v.  Jones,  3  M.  &  R.  101. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  319 

they  were  of  opinion  it  was  made  maliciously ;  that  the  ques- 
tion for  them  was,  did  the   defendant  honestly  believe,  at  the 
time  he  spoke  the  words,  that  the  statement  contained  in  them 
was  true,  or  was  he  actuated  by  malice  in  making  such  state- 
ment ? — held  that  there  was  no  misdirection.     But  the  court 
granted  a  new  trial,  not  being  satisfied  of  the  fact  whether  C.'s 
statements    were    made  officiously  or   in   answer  to  A.'s  in- 
quiries.1228    Whether  a  caution  not  to  trust  another  bond  fide 
given  to  a  tradesman,  without  any  inquiry  on  his  part,  is  a 
privileged  communication,  was  discussed  in  Bennett  v.  Dea- 
con™ and  it  was  held  by  Tinclal,  Ch.  J.,  and  Erie,  J.,  that  it 
was,  and  by  Coltman  and  Cresswell,  JJ.,  that  it  was  not.     The 
effect  of  a  previous  inquiry  was  very  elaborately  discussed  in  a 
case   where  C,  the  mate  of  a  ship,  wrote  to  the  defendant 
falsely  charging  his  captain  [the  plaintiff]  with  having  endan- 
gered the  vessel  and  lives  of  the  crew  by  continued  drunken- 
ness.    The  vessel  was  at  this  time  in  port,  and  likely  to  con- 
tinue there  a  few  days.     The  defendant,  who  was  slightly  ac- 
quainted with  the  owner  of  the  vessel,  but  was  not  interested 
in  the  vessel,  and  had  no  inquiry  made  of  him,  believing  in  the 
truth  of  the  letter,  showed  it  to  the  owner,  who,  in  consequence, 
dismissed  the  captain.     In  an  action  for  libel  by  the  captain, 
upon  these  facts  appearing  on  the  trial  the  chief  justice  direct- 
ed the  jury,  that  if  the  defendant  acted  honestly  and  bond  fide, 
the  publication  was  justifiable,  and  their  verdict  must ,  be  for 
the  defendant,  if  otherwise  for  the  plaintiff;  the  jury  found  a 
verdict  for  the  defendant.     On  a  motion  for  a  new  trial,  after 
the  case  had  been  twice  argued  at  the   request  of  the  court, 
held,  by  Tindal,  C.  J.,  and  Erie,  J.,  that  the  publication  was 
justifiable,  and  that  the  direction  to  the  jury  was  right ;  per 
Coltman,  J.,  and  Cresswell,  J.,  that  the  direction  was  wrong ; 
the  court  being  equally  divided,  the  motion  for  a  new  trial  was 
denied,  and  the  defendant  had  judgment.1230     The   defendant 

1228  Chapman  v.  Wright,  1  Arn.  241. 

mu  2  Com.  B.  628;  and  see  Levjis  v.  Chapman,  16  N.  Y.  369. 
1330  Coxhead  v.  Richards,  15  Law  Jour  R.  278,  C.  P. ;  10  Jur.  984;  2  C.  B.  569. 
Our  opinion  is  that  the  Chief  Justice  and  Justice  Erie  were  right,  and  Justices 


320  DEFENCES. 

being  tenant  to  A.  of  a  house,  B.,  the  agent  of  A.  directed 
the  plaintiff  to  do  some  repairs  at  the  house.  The  plaintiff  did 
the  repairs,  but  in  a  negligent  manner,  and  during  the  progress 
of  the  work  got  drunk  ;  circumstances  occurred  which  induced 
the  defendant  to  believe  that  the  plaintiff  had  entered  his  [de- 
fendant's] cellar,  and  taken  his  cider  deposited  there.  Two 
days  afterwards  defendant  met  the  plaintiff  in  the  presence  of 
D.,  and  charged  him  with  having  got  drunk  and  spoiled  the 
work,  and  broken  into  his  [defendant's]  cellar.  The  defendant 
afterwards  told  D.,  in  the  absence  of  plaintiff,  he  was  certain 
plaintiff  had  broken  open  the  door.  On  the  same  day,  the  de- 
fendant complained  to  B.  that  plaintiff  had  been  negligent  with 
the  work,  had  got  drunk,  and,  as  he  thought,  had  broken  open 
his  cellar  door.  In  an  action  of  slander  for  these  three  several 
publications,  held  that  the  first  and  third  publications  were  con- 
ditionally privileged,    and  the  second  was   not   privileged.1281 

Cresswell  and  Coltman  wrong.  The  importance  of  the  principle  involved  justifies 
the  reiteration  of  our  conclusion  that  the  material  question  in  such  a  case  is,  Was 
the  communication  made  bona  fide  to  protect  the  interests  of  the  person  spoken 
to,  without  regard  to  its  effect  upon  the  party  spoken  of,  and  without  any  ill-will 
towards  or  desire  to  injure  the  person  spoken  of;  if  yea,  it  is  privileged,  and  the 
absence  or  presence  of  a  previous  request  is  only  material  as  evidence  of  the  in- 
tent. This  is  conceded  to  be  the  law  in  the  case  of  an  employer  giving  what  is 
termed  a  character  to  an  ex-employe,  and  we  shall  show  [§  245]  this  latter  act 
comes  within  the  general  rule  of  a  communication  made  to  protect  the  interests 
of  the  persons  to  whom  the  communication  is  made.  On  the  argument  of  Cox- 
head  v.  Richards,  2  C.  B.  591,  Sir  T.  Wilde,  for  the  plaintiff,  says:  "The  cases  as 
to  characters  of  servants  are  not  in  point.  Judges  may  have  been  wrong  in  sup- 
posing that  a  former  master  stands  in  a  peculiar  position.  It  may  be  said  that  the 
servant  authorizes  the  master  to  libel  him"  [note  1258, post~\.  But  right  or  wrong 
the  cases  proceed  upon  that  distinction.  [Erie,  J. :  In  those  cases  it  is  perfectly 
immaterial  whether  the  party  was  a  volunteer ;  the  sole  question  is,  whether  the 
information  was  given  honestly  and  bona  fide.  Cresswell,  J.  :  Mr.  Justice  Bay- 
ley  deals  much  more  clearly  with  the  principle  upon  which  this  class  of  cases 
proceeds  than  Lord  Tenterden  does,  in  Pattison  v.  Jones.']  And  at  page  609, 
Erie,  J.,  denies  that  the  relation  of  master  and  servant  is  the  material  one  in 
cases  of  privileged  communication.  The  action  of  the  defendant  in  the  case  now 
before  us  seems  to  be  as  consistent  with  a  natural  and  praiseworthy  impulse  to 
protect  the  interest  of  the  ship-owner,  and  to  protect  the  lives  of  the  persons 
committed  to  the  plaintiff's  care,  as  with  a  desire  to  injure  the  plaintiff,  and 
should  not  be  considered  as  by  itself  evidence  of  malice. 
1231  Toogood  v.  Spyring,  1  Cr.  M.  &  R.  181 ;  4  Tyrw.  582. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  321 

Where  the  defendant,  a  son-in-law,  addressed  a  letter  to  his 
mother-in-law,  about  to  marry  the  plaintiff,  containing  slander- 
ous imputations  against  him  ;  held,  that  the  occasion  justified 
the  writing,  and  that  the  jury  were  to  say  whether  the  defend- 
ant acted  bond  fide,  and  under  a  belief  of  the  truth,  although 
the  imputations  were  false,  and  that  such  communications  were 
to  be  regarded  liberally,  unless  a  clearly  malicious  intention 
was  manifest  in  the  act.1232  But  a  letter  to  a  woman  containing 
defamatory  matter  concerning  her  suitor,  cannot  be  justified  on 
the  ground  that  the  writer  was  her  friend  and  former  pastor,  and 
that  the  letter  was  written  at  the  request  of  her  parents,  who 
assented  to  all  its  contents.1233  So  if  one  not  having  been  in- 
quired of,  write  to  the  family  of  a  woman  that  the  man  she  is 
about  to  marry  has  been  imprisoned  for  larceny,  the  communi- 
cation is  not  privileged.1234  But  where  the  wife  of  A.,  prior  to 
her  decease,  made  a  request  to  B.,  after  her  [A.'s]  decease,  to 
look  to  and  advise  her  daughters.  The  wife  of  A.  died,  and  he 
remarried.  B.  told  the  daughters  of  A.'s  deceased  wife  that 
their  step-mother  was  a  loose  woman,  and  that  they  ought  to 
leave  their  home ;  this  was  held  to  be  a  privileged  publica- 
tion.1235    The  plaintiffs,  printers  at  JVL,  had  been  employed  by 


1232 


Todd  v.  Hawkins,  8  C.  &  P.  88  ;  2  M.  &  Rob.  20.  The  court  having  in- 
structed the  jury  "that  confidential  communications,  made  in  the  usual  course  of 
business,  or  of  domestic  or  friendly  intercourse,  should  be  liberally  viewed  by 
juries,"  held  that  the  charge  was  right.  (Stallings  v.  JVewman,  26  Ala.  300.)  A. 
grand  jury  had  an  indictment  for  theft  of  money  before  them,  and  a  brother  of 
the  man  who  had  lost  the  money,  returning  from  the  court,  stated  that  fact  in 
answer  to  inquiries  made  of  him,  and  said  that  the  general  opinion  was,  that,  if 
a  certain  person  swore  what  he  had  stated,  the  accused  would  be  convicted. 
This  brother  was  afterwards  sued  for  slandering  the  accused,  by  saying  that  "he 
believed  he  stole  the  money,"  and  it  appeared  that  the  words  laid  in  the  declara- 
tion, if  spoken  at  all  of  the  plaintiff,  were  spoken  in  a  private  conversation  with  a 
brother  of  the  defendant,  both  being  brothers  of  the  man  whose  money  had  been 
stolen,  and  were  overheard  by  one  who  had  been  employed  to  listen.  Held, 
that  the  occasion,  and  the  relationship  between  the  parties,  afforded  a  prima 
facie  justification,  sufficient  to  defeat  the  action,  in  the  absence  of  any  other 
proof  of  malice  than  what  arose  from  the  mere  speaking  of  the  words.  (Faris 
v.  Starke,  9  Dana,  128.) 

1533  Joannes  v.  Bennett,  5  Allen  (Mass.),  169. 

1231  Krebs  v.  Oliver,  12  Gray,  239. 

1236  Adcock  v.  Marsh,  8  Ired.  360. 
21 


322  DEFENCES. 

the  defendant,  the  deputy  clerk  of  the  peace  for  the  county  of 
K.,  to  print  the  register  of  electors  for  the  county,  the  expense 
of  which  was  defrayed  from  the  county  rate,  and  allowed  by 
the  justices  at  quarter  sessions ;  afterwards  the  defendant  em- 
ployed another  printer,  who  agreed  to  do  the  work  at  a  lower 
rate  than  that  which  the  plaintiff  required,  and  he  wrote  a  let- 
ter to  the  "  finance  committee  "  appointed  to  superintend  such 
expenses,  in  the  conclusion  of  which  he  imputed  improper  mo- 
tives to  the  plaintiffs  in  the  demand  which  they  made,  and 
characterized  their  demand  as  "  an  attempt  to  obtain  a  consid- 
erable sum  of  money  from  the  county  by  misrepresentation." 
In  an  action  for  libel,  it  was  held  that  the  occasion  of  writing 
the  letter  prima  facie  rebutted  the  presumption  of  malice, 
but  that  it  was  a  question  for  the  jury  whether  the  sentence 
complained  of  as  exceeding  the  privilege  was  evidence  of  mal- 
ice.1236 The  defendant,  bond  fide  believing  that  the  plaintiff, 
who  was  a  clerk  to  one  M.,  a  customer  of  the  defendant's,  and 
who  had  been  sent  to  the  defendant's  shop  by  M.,  had,  while 
there,  stolen  a  box  from  an  inner  room,  went  to  M.,  and,  after 
telling  him  of  his  loss,  intimated  his  suspicion  of  the  plaintiff, 
saying,  "  There  was  no  one  else  in  the  room,  and  he  must  have 
taken  it."  Held,  that  the  communication  was  privileged  by 
the  occasion.1237  A  letter  written  to  B.,  concerning  the  plain- 
tiff, who  was  steward  of  B.'s  estate,  was  held  to  be  privi- 
leged.1238 A  communication  made  by  one  subscriber  to  a  char- 
ity to  another  subscriber  to  the  same  charity,  respecting  the 
conduct  of  the  plaintiff,  the  medical  attendant  in  the  employ 
of  such  charity,  held  not  to  be  privileged.1239  Where  the  al- 
leged libel  was  contained  in  a  hand-bill  offering  a  reward  for 
the  recovery  of  bills,  and  stating  that  the  plaintiff  was  believed 
to  have  embezzled  them ;  held,  that  if  done  with  the  view 
solely  to  protect  persons  liable  on  the  bills,  or  for  the  convic- 

aK  Cooke  v.  Wildes,  30  Eng.  Law  &  Eq.  R.  284 ;    5  El.  &  Bl.  328 ;    24   Law 
Jour.  Rep.  N.  S.  367,  Q.  B. ;  1  Jur.  N.  S.  610 ;  3  Com.  Law  Rep.  1090. 
u"  Amann  v.  Damm,  8  C.  B.  N.  S.  597. 
1M8  Cleaver  v.  Senaude,  1  Camp.  268  n. 
u"  Martin  v.  Strong,  5  Adol.  &  El.  535 ;    1  Nev.  &  P.  29. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  323 

tion  of  the  offender,  it  was  a  good  defence,  and  that,  in  order 
to  show  the  bond  fides  of  the  defendant,  evidence  of  his  hav- 
ing preferred  a  charge  of  the  same  nature  against  the  plaintiff 
was  admissible.1240  A  communication  by  a  landlord  to  his  ten- 
ant, respecting  the  conduct  of  sub-tenants,  or  persons  in  the 
employ  of  the  tenant,  is  conditionally  privileged;  as  where 
the  defendant  complained  to  E.,  his  tenant,  that  her  lodgers,  of 
whom  the  plaintiff  was  one,  behaved  improperly  at  the  win- 
dows, and  he  added  that  no  moral  person  would  like  to  have 
such  people  in  his  house.1241  So  communications  made  by  an 
employer  to  his  employe,  or  by  an  employe  to  his  employer, 
are  conditionally  privileged  in  certain  cases.  Thus,  defamatory 
words  spoken  by  an  employer  to  his  overseer,  intended  to  pro- 
tect the  employer's  private  interests  and  property,  spoken  with- 
out malice,  were  held  privileged.1242  The  communication  of  an 
agent  to  his  principal,  touching  the  business  of  his  agency,  and 
not  going  beyond  it,  is  privileged,,  and  is  not  actionable  with- 
out proof  that  the  defendant  did  not  act  honestly  and  in  good 
faith,  but  intended  to  do  a  wanton  injury  to  the  plaintiff.1243 
The  defendants,  bankers  at  L.,  received  from  C.  &  Co.,  of  Y., 
for  collection,  a  note  drawn  by  plaintiffs,  merchants  at  L. ;  the  • 
plaintiffs  took  up  the  note  at  maturity,  the  19th  of  April,  by 
giving  a  draft  on  defendants'  bank,  in  which  they  kept  their 
account.  The  draft  overdrew  the  plaintiffs'  account,  but  was  ac- 
cepted by  a  clerk  of  the  defendant,  who,  in  reply  to  an  offer  of 
one  of  the  plaintiffs  to  transfer  an  amount  standing  to  his  indi- 
vidual credit  sufficient  to  meet  the  check,  declared  that  to  be  un- 
necessary. The  plaintiffs'  account  was  made  good  on  the  25th  of 
April,  and  on  28th  of  April  defendants  remitted  to  C.  &  Co. 
the  amount  of  the  note,  and  added  a  postscript :  "  Confiden- 
tial.    Had  to  hold  over  a  few  days  for  the  accommodation  of 

1M0  Finden  v.   Westlake,  1  Mo.  &  Malk.  461. 

mi  Knight  v.  Gibbs,  3  Nev.  <fe  M.  467 ;  1  Adol.  &  El.  43.  Besides  that  the 
tenant  was  interested  to  know  the  character  of  her  lodgers,  the  defendant  was 
interested  to  maintain  the  reputation  of  his  house. 

1Mi  Easley  v.  Mom,  9  Ala.  266. 

mt  Wathburn  v.  Cooke,  3  Denio,  110. 


324  DEFENCES. 

L.  &  H." — the  plaintiffs.  On  the  trial  there  was  no  evidence 
as  to  malice ;  the  plaintiffs  had  a  verdict  on  which  judgment 
was  entered,  and  the  case  went  to  the  Court  of  Appeals,  where 
the  judgment  was  reversed  and  a  new  trial  ordered  ;  and  the 
court  said,  "  Assuming  that  the  defendant  made  the  communi- 
cation in  perfect  good  faith,  as  we  must  on  this  question  of 
privilege,  his  act  was  not  to  be  deemed  officious,  as  it  related  to 
the  very  business  with  which  he  was  intrusted."1344  The 
sheriff  levied  upon  certain  cattle  of  W.,  and  they  were  wrong- 
fully driven  away,  whereby  he  was  likely  to  be  damnified  ;  he 
employed  C,  a  law  student,  to  ascertain  the  facts,  and  to  advise 
what  course  it  was  best  to  pursue  ;  held  that  C.'s  letter  to  the 
sheriff,  stating  facts  implicating  W.,  and  advising  his  arrest  for 
larceny  of  the  cattle,  was  privileged.1245  The  communication 
of  a  pastor  to  his  parishioners,  relating  to  matters  not  spiritual, 
is  not  necessarily  privileged  ;  as  where  the  plaintiff,  who  had 
been  for  twenty  years  schoolmaster  at  the  national  school  of  the - 
adjoining  parishes  of  C.  and  I.,  of  which  the  defendant,  the 
rector  of  C,  and  another  person,  the  vicar  of  I.,  were  trustees, 
was  requested  by  the  defendant  to  undertake  the  Sunday-school 
of  his  parish ;  he  declining  to  do  so,  was  removed  from  the 
mastership  of  the  national  school ;  he  afterwards,  intending  to 
gain  a  livelihood  by  it,  set  up  a  school  in  the  defendant's  parish, 
in  a  schoolroom  used  as  a  dissenting  chapel.  In  a  letter  ad- 
dressed to  his  parishioners,  the  defendant  told  them  that  the 
plaintiff's  attempt  betrayed  a  spirit  of  opposition  to  author- 
ity, and  justified  the. managers  of  the  national  school  in  remov- 
ing him ;  that  "  no  rightly-disposed  Christian,  who  received  in 
simple  faith  the  teaching  of  inspiration,  '  Obey  them  who  have 
the  rule  over  you,  and  submit  yourselves,'  could  expect  God's 
blessing  to  rest  upon  such  an  undertaking,"  and  warned  them 
against  countenancing  it,  either  by  subscriptions  or  sending 
their  children  to  it  for  instruction  ;  that  it  would  be  a  schismati- 
cal  school,  and  those  who  aided  the  plaintiff  in  any  way  would 


"44  Lewis  v.  Cfiapman,  16  N.  Y.  369;  rev'g  19  Barb.  253. 
1344  Washburn  v.  Cooke,  3  Denio,  110. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  325 

be  partakers  with  him  in  his  evil  deeds ;  they  were  to  mark 
them  which  cause  divisions  and  offences,  and  avoid  them,  &c. 
On  the  trial  the  presiding  judge  held  the  communication  a 
privileged  one,  and  in  the  absence  of  any  evidence  of  malice, 
ordered  a  verdict  for  the  defendant ;  on  motion  for  a  new  trial 
this  direction  was  held  erroneous,  and  that  the  jury  should 
have  determined  whether  the  publication  was  not  malicious  on 
its  face.1246 

§  242.  When  once  a  confidential  relation  is  established  be- 
tween two  persons  with  regard  to  an  inquiry  of  a  private  na- 
ture, whatever  takes  place  between  them  relative  to  the  same 
subject,  though  at  a  time  and  place  different  from  those  at< 
which  the  confidential  relation  began,  may  be  entitled  to  pro- 
tection as  well  as  what  passed  at  the  original  interview  ;  and  it 
is  a  question  for  the  jury  whether  any  future  communication 
on  the  same  subject,  though  apparently  casual  and  voluntary, 
did  not  take  place  under  the  influence  of  the  confidential  rela- 
tion already  established  between  the  parties,  and  therefore  en- 
titled to  the  same  protection.1347 

§  243.  Where  a  publication  would  be  privileged  if  made, 
and  because  made  to  some  certain  person,  the  privilege  may  be 
forfeited  by  the  publication  being  made  to  some  other  person  ; 
as  where  C.  was  employed,  for  compensation,  by  certain  mer- 
chants in  New  York,  in  obtaining  information  concerning  the 
business  character  and  standing  of  their  customers,  and  others 
in  other  States,  doing  business  in  New  York.  He  wrote  for 
their  use,  from  the  residence  of  T.  &  Co.,  a  letter  unfavorably 
representing  them,  and  on  his  return  had  it  and  similar  letters 
printed  in  a  pamphlet,  which  he  gave  privately  to  his  employ- 
ers and  others,  some  of  whom  had  dealt  with  T.  &  Co.  Held, 
that  although  the  publication  might  have  been  privileged  if 
made  only  to  such  of  his  employers  as  were  interested  in  the 
pecuniary  standing  of  T.  &  Co.,  the  privilege  was  lost  by  the 

1246  Gilpin,  v.  Fowler,  26  Eng.  Law  &   Eq.  R.   386:    9  Ex.  615  ;  23  Law  Jour. 
Rep.  N.  S.  152,  Ex. ;   18  Jur.  292. 

m?  Bcatson  v.  Skene,  5  Hurl.  <fe  N.  838.     See  ante,  note  1198. 


326  DEFENCES. 

publication  being  made  to  other  persons.1248  And  so  held  of  a 
circular  letter  sent  by  the  secretary  of  a  society  for  the  protec- 
tion of  trade  to  the  members  of  such  society.1349  And  with  re- 
gard to  the  report  by  the  officers  of  a  corporation  to  the  stock- 
holders, of  the  result  of  their  investigation  into  the  conduct  of 
their  officers  and  agents,  with  their  conclusions  upon  the  evi- 
dence collected  by  them,  it  was  held  to  be  a  privileged  commu- 
nication, but  that  the  privilege  extended  only  to  making  the 
report,  and  not  to  the  preservation  of  it  in  the  form  of  a  book 
for  distribution  among  the  stockholders  and  in  the  commu- 
nity.1250 And  where  the  defendant  published  an  advertisement 
calling  a  meeting  of  the  creditors  of  the  plaintiff,  and  in  addi- 
tion defamatory  remarks  concerning  the  plaintiff,  the  publica- 
tion was  held  not  to  be  privileged,  because  the  meeting  of  cred- 
itors might  have  been  called  in  a  less  public  manner.1251  And 
although  a  bank  director  may  be  privileged  at  a  meeting  of  the 
board  to  speak  of  the  credit  of  a  merchant  or  customer  of  his 
bank,  he  is  not  privileged  so  to  speak,  even  to  a  co-director,  in 
any  other  place  or  at  any  other  time  than  at  such  meeting  dur- 
ing its  session.1252  The  publication,  by  the  directors  of  an  in- 
corporated society  for  promoting  female  medical  education,  in 
their  annual  report,  of  a  "  caution  to  the  public  "  against  trust- 
ing a  person  who  had  formerly  been  employed  to  obtain  and 
collect  subscriptions  in  their  behalf,  but  had  since  been  dis- 
missed, was  held  to  be  justified  so  far  only  as  it  was  made  in 
good  faith,  and  was  required  to  protect  the  corporation  and  the 
public  against  false  representations  of  that  person ;  and  that 

mB  Taylor  v.  Church,  1  E.  D.  Smith,  2*79 ;  4  Selden,  452 ;  and  see  Beardsley 
v.  Tappan,  in  note  732,  ante  ;   Cook  v.  Hill,  3  Sandf.  341. 

1249  Getting  v.  Foss,  3  Car.  &  P.  160. 

1250  Phil.  &  R.  R.  Co.  v.  Quighy,  21  How.  IT.  S.  Rep.  202.  The  plaintiff,  a 
policy  holder  in  an  insurance  company,  published  a  pamphlet  attacking  the  di- 
rectors of  the  company ;  the  directors  published  a  reply,  and  charged  that  plain- 
tiff had  sworn  in  opposition  to  his  own  handwriting ;  held  that  the  reply  was 
privileged,  if  published  to  vindicate  the  company.  (Koenig  v.  Ritchie,  3  Fost.  & 
Fin.  413.) 

1261  Brown  v.  Croome,  2  Stark.  Cas.  297. 
1252  Sewell  v.  Catlin,  3  Wend.  291. 


GIVING  INFORMATION  OR  ADVICE  GENERALLY.  327 

the  questions,  whether  the  directors  had  acted  in  good  faith, 
and  had  not  exceeded  their  privilege,  were  for  the  jury.1253  The 
plaintiff,  having  the  defendant's  bond,  advertised  it  for  sale ; 
the  defendant  published  a  statement  of  the  circumstances  under 
which  the  bond  had  been  given,  with  this  conclusion :  "  His 
[plaintiff's]  object  is  either  to  extract  money  from  the  pockets 
of  an  unwary  purchaser,  or,  what  is  more  likely,  to  extort 
money  from  me  ;  "  held  not  privileged.1254  A.  understanding 
that  B.  imputed  to  C,  a  relative  of  A.'s,  the  passing  to  him  of 
a  piece  of  forged  paper,  told  B.,  untruly,  that  he  was  authorized 
by  C.  to  call  upon  him  and  investigate  the  matter,  and  B.  there- 
upon repeatedly  asserted  C.'s  guilt  of  the  crime ;  held,  that 
these  assertions  were  unnecessary  and  useless,  and  were  not 
privileged,  and  it  seems  they  would  not  have  been  privileged  if 
A.  had  been  C.'s  agent  to  call  upon  B.  for  information.1255 

§  244.  There  are,  however,  some  cases  where  the  publica- 
tion to  others  than  those  immediately  interested  or  concerned 
does  not  forfeit  the  privilege ;  as  where  the  plaintiff,  a  female, 
went  to  the  store  of  the  defendant  to  make  a  purchase,  and 
after  she  left,  the  shopman,  missing  a  roll  of  ribbon,  supposed 
she  had  taken  it,  and  so  informed  his  employer,  the  defendant ; 
the  following  day  the  plaintiff  was  passing  the  defendant's 
store ;  the  defendant  seeing  her,  called  her  in,  and  taxed  her 
with  the  theft,  which  the  plaintiff  denying,  the  defendant  de- 
tained her  and  sent  for  her  father,  and  in  his  presence  charged 
the  plaintiff  with  stealing  the  ribbon ;  after  some  altercation 
the  plaintiff  was  permitted  to  depart,  and  afterwards  brought 
an  action  for  slander,  in  which  action  it  was  held  at  nisi  prius 
that  the  repetition  of  the  charge  to  the  plaintiff's  father  was, 
under  the   circumstances,   a  privileged   publication.1256      And 


1253 


Gassettv.  Gilbert,  6  Gray  (Mass.)  94. 

1254  Robertson  v.  McDougall,  4  Bing.  670 ;  1  Mo.  &  P.  692 ;  3  Car.  &  P.  259. 

2366  Tliorn  v.  Meter,  1  Denio,  488  ;  and  see  Robinet  v.  Ruby,  13  Md.  95. 

1266  Fowler  v.  Homer,  3  Camp.  294,  and  ante  note  1203 ;  also  Toogood  v.  Spy- 
ring,  1  Cr.  M.  &  R.  181  ;  4  Tyrw.  582;  Manby  v.  With,  18  C.  B.  544 ;  37  Eng. 
Law  &  Eq.  R.  403 ;  Taylor  v.  Hawkins,  5  Eng.  Law  &  Eq.  R.  253:   16  Q.  B.  308. 


328  DEFENCES. 

where,  in  an  action  for  slander,  it  appeared  that  the  defendant, 
in  the  presence  of  a  third  person,  not  an  officer  of  justice, 
charged  the  plaintiff  with  having  stolen  his  property,  and  after- 
ward repeated  the  charge  to  another  person,  also  not  an  officer, 
who  was,  with  the  consent  of  the  plaintiff,  called  in  to  search 
him,  held  the  charge  was  privileged  if  the  defendant  believed 
in  its  truth,  acted  bond  fide,  and  did  not  make  the  charge  be- 
fore more  persons  or  in  stronger  language  than  was  neces- 
sary.1257 

§  245.  There  is  a  well  recognized  right  to  what  is  termed 
"  give  a  character  to  a  servant."  This  right  may  be  thus  de- 
scribed: An  ex-employer  may,  without  rendering  himself  liable 
in  an  action  for  slander  or  libel,  state  orally  or  in  writing,  and  as 
well  without  as  with  a  previous  request,  all  that  he  may  believe  to 
be  true  concerning  his  ex-employee.  The  right  must  be  exer- 
cised in  good  faith,  i.  e.  without  malice.  It  appearing  that  the 
publication  was  made  in  what  is  termed  "  giving  a  character," 
the  presumption  is  that  it  is  made  bond  fide,  and  the  burden  is 
upon  the  plaintiff  to  show  malice.  The  legal  excuse  for  such  a 
publication  is  belief  in  the  truth  of  the  matter  published ;  if  the 
publisher  does  not  believe  in  the  truth  of  what  he  publishes, 
his  publication  is  malicious,  because  made  without  legal  excuse. 
Notwithstanding  this  legal  excuse,  if  the  publication  is  made 
with  a  design  to  injure  the  person  whom  its  language  concerns, 
the  publication  is  malicious,  because  not  made  in  good  faith.  A 
publication,  malicious  in  either  of  these  meanings  of  that  term, 
is  unprivileged.  Malice  is  established  when  it  is  shown  that 
the  matter  published  was  false  within  the  knowledge  of  the  pub- 
lisher ;  or  malice  may  be  established  by  showing  a  bad  motive 
in  making  the  publication  ;  as  that  it  was  made  more  publicly 
than  was  necessary  to  protect  the  interests  of  the  parties  con- 
cerned, or  that  it  contained  matter  not  relevant  to  the  occasion, 
or  that  the  publisher  entertained  ill-will  towards  the  person 
whom  the  publication  concerned.  Although  the  right  now  under 
consideration  is  one  exercised  in  connection  with  the  relation  of 

1267  Padmore  v.  Lawrence,  11  Ad.  &  El.  380;    3  Per.  &  D.  209. 


MASTER  AND  SERVANT.  329 

master  and  servant,  it  does  not  arise  from  that  relation,  at  least 
in  the  manner  generally  supposed,  nor  is  the  right  restricted  with- 
in the  limits  ordinarily  assigned  to  it.  The  relation  of  master 
and  servant,  or  of  employer  and  employee,  is  one  created  by  con- 
tract; with  the  determination  of  the  contract  the  relation  expires, 
and  at  the  expiration  of  the  relation  ceases  all  the  rights  and  du- 
ties which,  during  its  continuance,  existed  between  the  parties. 
Thenceforth  the  parties  occupy  the  same  relative  positions  as  if 
no  contract  of  hiring  and  serving  had  ever  been  made.  It  can- 
not be  that  because  A.  has  been  in  B.'s  employ,  B.  thereby  ac- 
quires a  right  to  publish  concerning  A.  anything  he  would  not 
have  been  permitted  with  impunity  to  publish  had  such  rela- 
tion never  existed.  Hence  the  right  now  in  question  must  rest 
on  some  other  foundation,  or  arise  in  some  other  way,  than 
upon  the  fact  that  the  person  spoken  or  written  of  has  been  in 
the  employ  of  the  publisher.1258  On  examination  it  will  be  per- 
ceived that  this  right  of  an  ex-employer  to  give,  as  it  is  termed, 
a  character  to  his  ex-employee,  is  nothing  more  than  a  conse- 
quence of  the  right  to  communicate  one's  belief,  which  is  re- 
ferred to  and  illustrated  in  a  preceding  section  [§  241].  An 
employer  is  charged  with  the  duty  of  exercising  due  care  in 
the  selection  and  retention  of  properly  qualified  employees  or 
agents,  and  is  liable  for  all  the  acts  of  his  employees  done  in 
his  service.  In  addition,  the  employer  has  more  or  less  to  trust 
the  safety  of  his  person  and  his  property  to  the  employee ;  the 
employer,  therefore,  is  peculiarly  interested  to  know  the  char- 
acter and  capacity  of  every  person  who  either  is  already  in  his 
employ,  or  is  desirous  of  entering  his  employ.  He  can  obtain 
this  knowledge  only  from  the  employee  himself,  or  from  inform- 
ation furnished  by  those  to  whom  the  employee  may  be  known. 
To  limit  the  source  of  this  knowledge  to  the  employee  himself, 


125b  That  seems  a  monstrous  proposition  of  Sir  T.  Wilde's  in  the  argument  of 
Coxhea.il  v.  Richards  [see  ante,  note  1230],  that  "the  servant  authorize?  the  mas- 
ter to  libel  him,"  and  yet  perhaps  it  is  warranted  by  the  reasoning  in  many  de- 
cisions, and  it  is  the  only  assumption  for  basing  a  distinction  between  the  case  of 
an  ex-employer  speaking  of  his  ex-employee  and  the  case  of  any  other  person 
(one  not  an  employer)  making  a  communication  to  a  party  interested. 


330  DEFENCES. 

would  manifestly  operate,  in  the  majority  of  cases,  to  prevent 
the  obtaining  any  information  worth  the  having ;  but  because 
the  employer  is  interested  to  know  the  character  and  capacity 
of  those  in  his  employ,  or  who  are  candidates  for  employment 
by  him,  every  one,  not  a  former  employer  only,  who  honestly 
believes  himself  possessed  of  knowledge  on  the  subject  which 
the  employer  is  interested  to  know,  may,  with  or  without  a 
previous  request,  in  good  faith,  communicate  such  his  belief  to 
the  employer.  In  such  cases  the  communication  is  made  not  to 
promote  the  interest  of  the  person  making  it,  but  either  to 
serve  the  interests  of  the  employer,  or  to  injure  the  employee. 
No  one  is  under  any  obligation  to  disclose  his  belief;  he  does 
not  owe  it  as  a  duty,  either  to  the  employer  or  the  employee,  to 
make  any  communication  on  the  subject.  Making  the  com- 
munication is  the  exercise  of  a  right,  and  is  optional  [§  39]. 
This  right  is  exercised  under  the  double  peril  that  by  speak- 
ing disparagingly  of  the  employee,  the  speaker  may  be  sued  by 
the  employee  for  slander,  and  by  speaking  approvingly  of  the 
employee  he  may  be  sued  by  the  employer  for  misrepresenta- 
tion.1259 Hence  this  right  is  usually  exercised  with  reluctance ; 
and  as,  where  the  communication  is  made  without  request,  less 
evidence  of  ill-will  may  be  required  than  in  the  case  of  a  com- 
munication made  upon  a  request,  it  seldom  happens  that  such 
communications  are  made  without  request ;  and  because  the 
character  and  capacity  of  an  employee  will  be  by  no  one  so  well 
known  as  by  the  one  in  whose  service  he  has  been,  it  happens 
the  ex-employer  is  the  person  to  whom,  in  the  majority  of 
instances,  application  will  be  made  for  information  respecting 
the  character  and  capacity  of  a  candidate  for  employment,  not 
because  the  ex-employer  is  the  only  one  having  the  right  to 
give  information,  but  because  he  is  supposed  to  be  best  quali- 
fied to  give  information  on  the  subject.  The  exercise  of  this 
right  should  be  encouraged,  not  only  for  the  benefit  of  the  em- 
ployer, but  of  the  employee  ;  if  the  ex-employer  refuses,  as  he 

1269  Defendant's  letter  of  recommendation  of  the  plaintiff,  if  untrue,  would 
have  rendered  him  liable  to  any  one  injured  thereby.  (Fowles  v.  Bowen,  30  N. 
T.  20 ;  and  see  Pasletj  v.  Freeman,  3  Term  R.  51.) 


MASTER  AND  SERVANT.  331 

lawfully  may,1260  to  answer  any  inquiries  respecting  his  ex-em- 
ployee, the  probable  inference  is  that  he  can  say  nothing  favor- 
able, and  will  not  incur  the  risk  of  saying  anything  unfavorable. 
These  views  have  been  expressed  judicially,  as  thus  :  "  But  the 
rule  is  general,  and  it  seems  to  me  to  be  quite  a  mistake  to  sup- 
pose that  it  is  the  privilege  only  of  persons  giving  characters. 
There  are  two  other  classes  of  persons  materially  interested  in 
the  maintenance  of  the  privilege — the  persons  accepting  char- 
acters, and  those  of  whom  characters  are  given.  It  is  a  most 
important  privilege  for  the  encouragement  of  all  honest  ser- 
vants. They  are  sufficiently  protected  against  the  abuse  of  it 
by  that  limitation  of  it  to  which  all  agree — that  if  a  master,  go- 
ing beyond  it,  wantonly  and  maliciously  make  a  false  statement 
as  to  the  character  of  his  servant,  the  express  malice  takes 
away  all  the  privilege."1261 

§  246.  The  subject  of  the  preceding  section  [§  245]  is  illus- 
trated by  the  decisions  to  which  we  proceed  to  refer.  Thus,  it 
is  said,1262  a  hondfide  character  given  of  a  servant  that  she  was 
saucy,  &c,  if  there  be  no  malice  (which  must  be  directly 
proved),  will  not  ground  an  action  of  slander,  though  the  ser- 
vant was  prevented  from  getting  a  place  thereby ;  and,  though 
a  letter  giving  a  false  character  of  a  servant  may  be  the  ground 
of  an  action,  yet,  if  written  as  an  answer  to  a  letter  sent,  not 
with  a  view  to  obtaining  a  character,  but  with  an  intention  of 
obtaining  such  an  answer  as  should  be  the  ground  of  an  action, 
no  action  can  be  sustained.1263  A  servant  cannot  maintain  an 
action  against  his  former  master,  for  words" spoken,  or  a  letter 
written  by  him  in  giving  a  character  of  the  servant,  unless  the 
latter  prove  the  malice  as  well  as  falsehood  of  the  charge,  even 
though  the  master  make  specific  charges  of  fraud.  As  where 
the  plaintiff,  who  had  been  in  the  employ  of  the  defendant, 

1560  No  action  lies  for  refusing  to  give  information  as  to  the  character  or  capac- 
ity of  a  former  employee.     {Carrol  v.  Bird,  3  Esp.  204.) 

1361  Wightman,  J.,  Gardner  v.  Slade,  13  Jurist,  828  ;  13  Adol.  &  El.  N.  S.  796  ; 
and  see  in  note  1 270,  pott. 

12r2  Edmonson  v.  Stephenson,  Bull.  N.  P.  8. 
King  v.  Waring,  5  Esp.  14. 


1H) 


332  DEFENCES. 

afterwards  applied  to  one  R.  for  employment.  R.  inquired 
of  the  defendant  concerning  plaintiff',  and  in  consequence  of 
what  was  told  him  by  defendant,  refused  to  employ  plaintiff. 
Upon  this,  C,  plaintiff' 's  brother-in-law,  called  upon  the  defend- 
ant for  an  explanation,  and  then  the  defendant  wrote  C,  "  Two 
days  I  gave  him  (plaintiff")  money  to  go  into  the  city  and  buy 
books.  When  he  came  home  I  desired  him  to  reckon  up  his 
accounts ;  he  did  so.  But  being  one  day  more  curious  than  I 
sometimes  was,  I  looked  over  his  account,  article  by  article,  and 
in  one  book  I  well  knew  the  price  of,  I  fount  he  had  charged 
me  one  shilling  more  than  it  cost,  and  that  shilling  he  kept  in 
his  pocket,"  with  statements  of  other  frauds  ;  on  the  trial  the 
plaintiff  had  a  verdict,  subject  to  the  opinion  of  the  court  on  a 
special  case ;  upon  the  argument  of  the  case  judgment  was 
ordered  for  the  defendant.1264  "Where,  in  an  action  of  slander, 
it  appeared  that  the  plaintiff  had  applied  to  the  under-sheriff 
to  be  appointed  an  officer,  the  latter  applied  to  the  defendant 
as  to  the  fitness  of  plaintiff,  held  that  the  answer  of  the  defend- 
ant was  conditionally  privileged.1265  Where  A.  introduced  the 
plaintiff  to  defendant,  a  ship's  captain,  who  employed  plaintiff 
as  his  mate,  defendant  afterwards  dismissed  plaintiff  from  his 
service,  and  wrote  A.  that  he  had  done  so  on  account  of  the 
intemperate  habits  of  the  plaintiff,  this  was  held  a  privileged 
communication.1266  The  defendant  being  about  to  dismiss  the 
plaintiff  from  his  employ,  called  in  a  friend  to  hear  what 
passed,  and  having  dismissed  the  plaintiff,  refused  to  give  him 
a  character,  alleging  to  those  who  applied  for  information  re- 
specting the  plaintiff,  that  he,  defendant,  had  discharged  the 
plaintiff  for  dishonesty.  The  plaintiff's  brother  afterwards 
inquired  of  the  defendant  why  he  had  treated  the  plaintiff  in  such 

1264  Weatherstov.e  v.  Hawkins,  1  Term  R.  110. 

1265  Sims  v.  Kinder,  1  Carr.  279. 

nee  J'remai7ie  v.  Parker,  12  Law  Times,  312.  A  letter  addressed  to  a  person 
on  whose  recommendation  the  writer  had  taken  the  plaintiff  into  his  service,  to 
the  effect  that  his  (plaintiff's)  conduct  hadnot  justified  the  character  given  of  him, 
and  that  he  had  left  a  balance  unaccounted  for,  and  that  he  ought  not  to  be  re- 
commended for  morality  or  honesty ;  this  was  held  to  be  privileged.  (Dixon  v. 
Parsons,  1  Fost.  &  Fin.  24.) 


MASTER  AND  SERVANT.  333 

a  manner,  and  that  he  (defendant)  was  keeping  plaintiff  out  of 
employ.  The  defendant  answered,  "  He  has  robbed  me ;  and  I  be- 
lieve for  years  past,"  adding  that  he  concluded  so  from  the  circum- 
stances under  which  he  had  discharged  the  plaintiff.  Erie,  J.,  said, 
"  The  calling  in  a  witness  was  consistent  with  a  wish  to  spread 
defamation ;  it  was  consistent  also  with  the  wish  to  do  what  a 
prudent  man  would  desire  to  do.  But  if  the  effect  of  the  evi- 
dence is  equal  both  ways,  the  onus  of  proving  malice  lies  upon 
the  plaintiff.  As  to  the  words  spoken  to  the  plaintiff's 
brother,  no  malicious  motive  appears.  The  evidence,  indeed, 
related  to  only  one  robbery,  whereas  the  defendant  spoke  of 
having  been  robbed  for  years.  But  the  communication  was 
made  in  answer  to  an  inquiry  by  the  plaintiff 's  brother,  and 
there  are  no  circumstances  to  show  that  the  extent  of  the  state- 
ment actually  made  proceeded  from  malice,  or  went  beyond 
what  might  be  said  by  a  person  honestly  wishing  to  tell  the 
whole  truth."1267  The  plaintiff  had  been  in  the  employ  of  the 
defendant  and  dismissed  on  a  charge  of  theft.  Plaintiff  after- 
wards went  to  defendant's  house  to  be  paid  his  wages,  and  was 
in  conversation  with  the  defendant's  servants,  when  the  defend- 
ant, addressing  his  servants,  said,  "  I  discharged  that  man  [the 
plaintiff]  for  robbing  me ;  do  not  speak  any  more  to  him,  in 
public  or  private,  or  I  shall  think  you  as  bad  as  him."  Maule, 
J.,  said,  "  The  evidence  does  not  raise  any  probability  of  malice, 
and  is  quite  as  consistent  with  its  absence  as  with  its  presence ; 
and  considering  that  the  mere  possibility  of  malice  which  is 
found  in  this  case,  and  in  all  cases  where  it  is  not  disproved, 
would  not  be  sufficient  to  justify  a  finding  for  the  plaintiff,  and 
it  was  right  not  to  leave  the  question  of  malice  to  the  jury." 1268 
A  defendant  who  had  dismissed  two  servants,  told  one  in  the  ab- 
sence of  the  other,  You  have  both  been  robbing  me;  it  was  held 
conditionally  privileged.1269     The  plaintiff  being  in  the  service 

1267  Taylor  v.  Hawkins,  16  '<}.  B.  308;  5  Eng.  Law  &  Eq.  R.  253;  20  Law 
Jour.  Rep.  N.  S.  313,  Q.  B. ;   15  Jurist,  706;  and  ante,  notes  1256,  1257. 

BM  Somcrville  v.  Hawkins,  10  C.  B.  583;  15  Jurist,  450;  3  Eng.  Law  &  Eq.  R. 
503. 

WM  Manly  v.  With,  and  Eastmcad  v.   With,  37  Eng.  Law  &  Eq.  R.  403. 


334  DEFENCES. 

of  the  defendant  was  discharged  without  any  previous  notice, 
and  the  plaintiff  considering  himself  entitled  to  a  month's 
wages,  in  lieu  of  the  notice,  refused  to  quit  the  defendant's 
house  until  those  wages  were  paid'  him,  whereupon  the  defend- 
ant had  the  plaintiff  removed  by  a  police  officer.  The  defend- 
ant called  on  one  Holland,  in  whose  employ  the  plaintiff  had 
previously  been,  and  complained  of  plaintiff,  requesting  Mr. 
Holland  not  to  give  plaintiff  another  character.  Subsequently, 
the  plaintiff  applied  to  Mr.  Hand  for  employment,  who  in- 
quired of  defendant  and  received  from  him  a  letter,  the  mate- 
rial portion  of  which  was  as  thus  :  "  Rogers  [the  plaintiff]  did 
not  live  with  me  six  months,  as  he  has  told  you,  and  I  wish  I 
had  never  taken  him  into  my  house,  as  he  is  a  bad  tempered, 
lazy,  impertinent  fellow,  and  has  given  me  a  great  deal  of  trou- 
ble. I  was  obliged  to  send  for  a  police  officer  to  put  him  and 
his  things  out  of  my  house  ;  as  I  look  upon  it  he  will  take  any 
advantage  he  can."  On  the  trial  the  court  left  it  to  the 
jury  to  say  if  the  defendant  had  acted  maliciously  ;  the  verdict 
was  for  the  plaintiff :  leave  was  reserved  to  the  defendant  to 
move  to  enter  a  nonsuit.  He  moved,  but  his  motion  was  re- 
fused.1270    Where  the  defendant,  the  plaintiff's  former  mistress, 

1310  Rogers  v.  Clifton,  3  B.  &  P.  58Y,  on  the  motion  for  a  nonsuit,  Lord  Alvan- 
ley,  Ch.  J.,  said,  "  If  it  were  to  be  understood  that  whenever  a  master  gives  a  bad 
character  to  a  servant  who  has  quitted  his  service,  he  may  be  forced  by  the  servant, 
in  justification,  to  prove  the  truth  of  what  he  has  stated,  it  would  be  impossible  for 
any  master  (so  understanding  the  law,'at  least  with  any  regard  to  his  own  safety)  to 
give  any  character  but  the  most  favorable  to  a  servant,  and  consequently  impos- 
sible for  a  servant  not  entitled  to  the  most  favorable  character  to  obtain  any  new 
place.  Unquestionably  the  master  is  not  bound  to  substantiate  the  truth  of  what 
he  says  in  giving  a  character  to  his  late  servant,  but  it  is  equally  clear  that  the 
servant  may,  if  he  can  prove  the  character  to  be  false,  and  the  question  between 
the  master  and  servant  will  always,  in  such  a  case,  be,  whether  what  the  former 
has  spoken  concerning  the  latter  be  malicious  and  defamatory  ;  "  and  per  Rooke, 
J.,  "  a  master  may,  at  any  time,  whether  asked  or  not,  speak  of  the  character  of  his 
servant,  provided  that  he  speak  in  the  honesty  of  his  heart,  and  an  action  cannot 
be  maintained  against  him  for  so  doing ;  at  the  same  time,  masters  are  not  war- 
ranted in  speaking  ill  of  their  servants  from  heat  and  passion."  Where  the  plain- 
tiff charged  his  servant  with  robbing  him,  and  the  robbery  charged  consisted  in 
giving  away  pieces  of  bread,  the  court  charged  the  jury  that  if  the  pieces  of 
bread  given  away  were  such  pieces  as  the  servant  might  reasonably  suppose  the 


MASTER  AND  SERVANT.  335 

had,  in  a  letter  inquiring  as  to  her  character,  stated  acts  of  mis- 
conduct during  the  time  of  the  plaintiff  's  being  in  her  service, 
and  also  subsequently  to  her  having  left  it,  and  the  defendant 
had  also  stated  the  same  to  the  persons  who  originally  recom- 
mended the  plaintiff  to  her ;  held,  that  the  latter  part  of  the 
letter  was  a  privileged  communication,  and  which  the  defend- 
ant was  bound  to  make,  and  that  the  parol  statement  having 
been  made  to  the  parties  only  who  recommended  her,  was  not 
officious,  nor  evidence  of  malice,  which  in  such  an  action  is  the 
gist,  and  must  be  expressly  proved.1271  In  an  action  for  slander 
of  the  plaintiff,  in  her  character  of  a  domestic  servant,  the 
plaintiff  proved  that,  having  lived  some  time  with  the  defend- 
ant, she  changed  service  upon  a  character  given  to  her  by  the 
defendant ;  that,  some  time  afterwards,  the  defendant's  wife,  in 
a  letter  to  her  new  mistress,  alluded  to  the  plaintiff,  and  to  the 
character  first  given  of  her  as  being  unmerited  ;  that  thereupon 
the  new  mistress  requested  further  information,  and  was  told, 
by  the  defendant's  wife,  that  she  had  discovered,  since  the  time 
of  the  giving  of  the  first  character,  that  the  plaintiff  was  dis- 
honest. Held,  that  there  was  no  evidence  to  be  submitted  to 
the  jury  of  malice  in  the  defendant's  wife,  and  that  the  commu- 
nication was  privileged.  If  a  servant  obtain  a  place  upon  the 
strength  of  a  character  given  by  his  master,  and  the  master 
afterwards  discover  circumstances  which  induce  him  to  believe 
that  the  character  was  undeserved,  he  is  morally  bound  to  in- 
form the  new  master  of  those  circumstances,  and  the  communi- 
cation made  concerning  them  is  a  privileged  communication.1272 
The  plaintiff  had  been  in  the  employ  of  defendant  and  his 
partners  ;  on  plaintiff  leaving  their  employ,  defendant  and  his 
partners  gave  him  a  written  recommendation,  and  plaintiff 
afterwards  went  into  the  employ  of  C.  Subsequently,  defend- 
ant saw  C,  and  said  he  desired  to  set  him  right  in  regard  to  a 

master  would  not  object  to  his  giving  away,  the  master  was  not  justified  in  the 
charge  of  robbery,  and  the  servant  might  recover.  (Roberts  v.  Richards,  3  Fost. 
&  Fin.  507.) 

13,1  Child  v.  Affleck,  9  B.  &  C.  403. 

Bn  Gardner  v.  Slade,  13  Jurist,  826  ;  11  Law  Jour.  Rep.  334,  Q.  B. ;  13  Law 
Times,  282. 


336  DEFENCES. 

young  man  in  his  employ,  the  plaintiff,  that  he  was  a  liar,  and 
he  had  doubts  of  his  honesty ;  held  a  conditionally  privileged 
communication.1273  The  letter  of  recommendation,  if  untrue,, 
would  have  rendered  him  liable  to  any  one  injured  thereby,  and 
he  was  privileged  to  say  what  he  did  for  his  own  protection. 
Plaintiff  was  in  the  service  of  the  defendants  [husband  and 
wife]  as  governess  for  fourteen  months.  After  she  left  she 
sought  an  engagement  elsewhere,  and  on  an  inquiry  being  made 
to  the  defendant  (the  wife)  concerning  the  plaintiff,  the  defend- 
ant answered  in  writing,  "  I  parted  with  her  (the  plaintiff')  on 
account  of  her  incompetency  and  not  being  lady-like  nor  good 
tempered,"  adding,  "  May  I  trouble  you  to  tell  her  (the  plain- 
tiff )  that  this  being  the  third  time  I  have  been  referred  to,  I 
beg  to  decline  any  further  applications."  Evidence  was  given 
of  plaintiff's  competency  and  of  her  being  lady-like  and  good 
tempered.  It  was  left  to  the  jury  to  say  whether  the  letter 
was  written  maliciously,  and  that  stating  what  was  untrue  was 
evidence  of  malice.  The  plaintiff  had  a  verdict,  and  the  court 
above  refused  to  disturb  it.1274  Where  the  plaintiff's  master 
(the  defendant)  had,  on  his  quitting  his  service,  and  being  about 
to  enter  on  another,  written  of  his  own  accord  a  letter  inform- 
ing the  party  that  he  had  discharged  the  plaintiff  for  miscon- 
duct, and  on  receiving  a  letter  inquiring  the  particulars,  had 
written  the  libellous  letters  for  which  the  action  was  brought ; 
held,  that  although  a  party  might  set  himself  in  motion  to  in- 
duce inquiries  by  a  third  party,  and  the  answers,  although  slan- 
derous, might  come  within  the  scope  of  a  privileged  communi- 
cation ;  yet  in  such  a  case  it  would  be  a  question  for  the  jury  to 
say  if  the  defendant  acted  bond  Jlde,  or  maliciously  intending 
to  do  the  servant  an  injury.1275 

§  247.  As  respects  publications  concerning  candidates  for 
office,  we  take  upon  ourselves,  with  due  deference  to  the  decisions, 
to  say,  that  the  same  rule  applies  to  them  as  to  communications 

1573  Fowles  v.  Bowen,  30  N.  Y.  20. 

1274  Fountain  v.  Boodle,  3  Ad.  <fe  El.  N.  S.  5 ;  2  Gale  &  Dav.  455. 

1276  Pattison  v.  Jones,  8  B.  &  C.  587 ;  3  C.  <fc  P.  383 ;  3  M.  &  R.  101. 


CANDIDATE   FOR   OFFICE.  337 

made  concerning  candidates  for  employment  generally  [§  245]. 
The  rule,  as  we  suppose,  must  be  the  same  for  every  kind  of 
employment,  and  office  is  only  another  name  for  employment. 
The  right  which  one  has  to  speak  concerning  a  candidate  for 
employment  as  a  mechanic,  is  n either  more  extensive  nor  more 
limited  than  the  right  one  has  to  speak  of  a  candidate  for  the 
office  of  a  legislator  or  a  judge.  As  respects  a  candidate  for 
employment  generally,  so  with  respect  to  a  candidate  for  office ; 
the  publication,  to  be  privileged,  must,  with  certain  excep- 
tions [§  244],  be  limited  to  the  persons  interested.  A  general 
publication,  as  well  to  those  interested  as  to  those  not  interest- 
ed, would  not  be  privileged.  Again,  the  matter  published 
must  be  such  as  is  relevant  to  the  subject-matter,  and  necessary 
to  be  known  by  the  persons  in  interest  for  their  own  protec- 
tion. Thus  the  publication  in  a  newspaper  of  defamatory 
matter  concerning  a  candidate  for  appointment,  was  held  not 
privileged,  and  that  to  have  been  privileged  the  publication 
should  have  been  limited  to  the  appointing  power  [§243];1276 
so  limited  it  would  have  been  privileged  ;  as  where  the  defend- 
ant, at  the  request  of  a  senator  of  the  United  States,  in  order 
to  give  him  information  as  to  the  fitness  of  the  plaintiff  for  the 
office  to  which  he  was  nominated,  spoke  the  words  charged  in 
the  declaration,  and  referred  to  the  records  of  a  court  for  their 
confirmation,  it  was  held  that  there  was  nothing  from  which  to 
imply  malice,  and  that  the  plaintiff  could  not  sustain  his  ac- 
tion.1277 Where  a  candidate  for  the  representation  of  a  bor- 
ough circulated  an  address  to  the  electors,  asking  for  their  suf- 
frages, and  claiming  to  be  a  fit  and  proper  person  to  represent 
them  in  Parliament,  and  an  elector  in  that  borough  published 
in  a  newspaper  two  letters  addressed  to  the  candidate,  the  first 
in  answer  to  the  circular,  and  the  second  in  consequence  of  the 
treatment  he  had  received  from  the  candidate  on  the  day  of 
nomination  at  the  hustings,  and  both  letters  contained  imputa- 

1276  Hunt  v.  Bennett,  19  N.  Y.  173,  affirming  4  E.  D.  Smith,  G47. 

1277  Law  v.  Scott,  5  Har.  <fe  J.  438.  A  statute  in  Pennsylvania  provides:  No 
person  shall  be  subject  to  prosecution  by  indictment  for  investigating  official  con- 
duct of  public  officers,  «fec. 

22 


338  DEFENCES. 

tions  on  the  private  character  of  the  candidate ;  on  the  trial  of 
an  action  for  libel  the  judge  charged  the  jury  that  the  occasion 
did  not  justify  the  publication,  and  the  plaintiff  had  a  verdict. 
On  a  motion  for  a  new  trial  it  was  claimed  that  it  was  justifi- 
able for  an  elector  bond  fide  to  communicate  to  the  constitu- 
ency any  matter  respecting  a  candidate  which  the  elector  be- 
lieved to  be  true  and  material  to  the  election.  The  principle 
ivas  conceded  by  the  court  to  be  correct,  but  was  held  inappli- 
cable because  the  communication  had  not  been  confined  to  the 
constituency  of  the  plaintiff ,  but  had  been  published  in  a  news- 
paper.1™ Where  the  plaintiff  was  candidate  at  a  general  elec- 
tion for  re-election  as  State  Governor,  the  defendant  published 
defamatory  matter  of  the  plaintiff  in  "  An  address  to  the  elec- 
tors of  the  State  of  New  York  ;"  in  an  action  of  libel  for  this 
publication,  it  was  contended  on  the  part  of  the  defendant  that 
the  plaintiff  could  not  recover  unless  upon  proof  of  "  express 
malice.''''  The  court  denied  this  position,  and  held  that  malice 
was  to  be  implied  from  the  falsity  of  the  publication.1279 

§  248.  Insanity  is  a  complete  defence  to  an   action  for  slan- 

m8  Buncombe  v.  Daniell,  8  C.  &  P.  213  ;  1  W.  W.  &  H.  101,  Denman,  C.  J. 
However  large  the  privilege  of  electors  may  be,  it  is  extravagant  to  supjjose  that 
it  can  justify  the  publication  to  all  the  ivorld  of  facts  injurious  to  a  person  who 
happens  to  stand  in  the  situation  of  a  candidate. 

1279  Lewis  v.  Few,  5  Johns.  1.  In  Harwood  v.  Astley,  4  Bos.  <fe  Pul.  47;  IN. 
R.  4*7,  an  action  for  slander  of  a  candidate  for  election  to  Parliament,  the  plaintiff 
succeeded  and  had  judgment,  which  the  court,  on  writ  of  error,  affirmed  princi- 
pally, if  not  solely,  on  the  ground  that  the  jury  must  have  found  the  publication 
to  be  malicious,  and  therefore  not  privileged.  Officers  and  candidates  for  offices 
may  be  canvassed,  but  not  calumniated.  (Seely  v.  Blair,  Wright,  358,  683.  See 
Brewer  v.  Weakley,  2  Overt.  99  ;  Root  v.  King,  7  Cow.  613,  affirmed  4  Wend.  113, 
note  to  Amer.  edit,  of  Stark.  Slan.  vol.  i.  p.  301.)  In  Mayrant  v.  Richardson,  1 
Nott  &  McC.  327,  an  action  of  slander  against  a  candidate  for  office,  it  was  held 
by  Nott,  J.,  that  when  a  man  becomes  a  candidate  for  public  honors,  he  makes 
profert  of  himself  for  public  investigation.  No  one  has  the  right  to  impute  to 
him  infamous  crimes  or  misdemeanors,  but  talents  and  qualifications  are  mere 
matters  of  opinion,  of  which  the  electors  are  the  only  judges,  and  in  that  case  it 
was  held  that  imputing  weakness  of  understanding  to  a  candidate  for  Congress 
was  not  actionable.  In  Com'wealth  v.  Clapp,  4  Mass.  163,  Parsons,  C.  J.,  says: 
"  When  a  man  shall  consent  to  be  a  candidate  for  a  public  office,  conferred  by  the 
electors  of  the  people,  he  must  be  considered  as  putting  his  character  in  issue,  so 


INSANITY,  DRUNKENNESS,   APOLOGY.  339 

d'er  or  libel.1280  Fools  and  madmen  are  tacitly  excepted  out  of 
all  laws.1281  A  judgment  in  an  action  for  slander  was  perpet- 
ually enjoined,  upon  the  ground  that  at  the  time  of  the  speak- 
ing the  words,  and  of  the  rendition  of  the  judgment,  the  de- 
fendant was  insane  in  reference  to  the  subject  of  the  slan- 
der.1282 

§  249.  Drunkenness  is  not  a  defence  to  an  action  for  slan- 
der or  libel,1283  nor  is  infancy ; 1284  but  drunkenness  may,  per- 
haps, be  a  matter  of  mitigation.1285 

§  250.  It  is  a  good  defence  to  an  action  for  libel,  that  after 
the  publication  the  plaintiff    agreed  with   the   defendant   to 

far  as  may  respect  his  fitness  and  qualification  for  office."  But  see  Curtis  v.  Mvs- 
sey,  6  Gray,  261 ;  Aldrich  v.  Press  Print.  Co.,  9  Min.  133. 

V2'°  Bryant  v.  Jackson,  6  Humpf.  199  ;  Yeates  v.  Peed,  4  Blackf.  463 ;  Dickinson 
v.  Barber,  9  Mass.  225.  Perhaps  delirium  tremens  is  a  defence ;  for  it  is  a  species 
of  insanity,  and  like  insanity  from  other  causes,  affects  the  responsibility  for  crime. 
{Maconnehey  v.  The  State,  5  Ohio,  N.  S.,  77;  O'Brien  v.  TJie  People,  48  Barb.  275.) 
A  lunatic  is  liable  for  a  trespass.  (  Weaver  v.  Ward,  Hob.  134  ;  Krom  v.  Schoon- 
maker,  3  Barb.  647;  Bullock  v.  Babcock,  3  Wend.  391 ;  Rae's  Medical  Juris.  110; 
Mason  v.  Keeling,  12  Mod.  332 ;  2  Monthly  Law  Reporter,  N.  S.  487.)  In  the  chap- 
ter in  the  Roman  Law  entitled  "  Si  quis  Imperatori  Maledixerit,"  is  a  passage, 
which  being  interpreted  reads:  "  If  the  evil  speaking  proceed  from  levity,  it  is  to 
be  despised  ;  if  from  madness,  it  is  to  be  pitied;  if  from  a  sense  of  wrong,  it  is  to 
be  forgiven." 

It  is  not  a  defence  to  an  action  of  slander  or  libel,  that  the  words  were  not 
spoken  in  earnest,  but  as  a  jest,  and  that  the  defendant  did  not  expect  to  be  be- 
lieved. {Hatch  v.  Potter,  2  Gilman,  725 ;  Holt  on  Libel,  290,  291 ;  Long  v. 
Eakle,  4  Md.  454 ;  McKee  v.  Ingalls,  4  Scam.  30 ;  Wood's  Civil  Law,  247 ;  and 
see  Pieter  Tonneman  v.  Jan  De  Witt,  Valentine's  Corporation  Manual  for  1849, 
p.  402 ;  Addison  on  Contracts,  261.) 

1581  Holt,  Ch.  J.,  City  of  London  v.  Vanacker,  Carthew,  483. 

1262  Horner  v.  Marshall,  5  Munf.  466. 

1283  McKee  v.  Ingalls,  4  Scam.  30.  As  to  defence  of  intoxication  in  an  action 
on  an  express  contract,  see  Gore  v.  Gibson,  13  M.  &.  W.  623. 

1284  Defriesv.  Davis,  1  Bing.  N.  C.  692;  1  Scott,  594.  An  infant  two  years 
old  is  not  liable  criminaliter  for  a  nuisance  erected  on  his  lands.  {The  People  v. 
Townsend,  3  Hill,  479.)  And  one  aged  only  eleven  years,  seized  of  lands  in  the 
actual  occupation  of  his  guardian,  in  socage  is  not  indictable  for  the  non-repair 
of  a  bridge  ratione  tenure.  {Rex  v.  Sutton*,  5  Nov.  &  Man.  353.)  See  cases  col- 
lected in  a  note  in  5  Monthly  Law  Reporter,  N.  S.  364,  Boston,  Nov.  1852. 

1286  Howell  v.  Howell,  10  Ired.  £4.  And  see  Iselty  v.  Lovejoy,  8  Blackf.  462 ; 
Gat«s  v.  Meredith,  1  Ind.  440. 


34:0  DEFENCES. 

accept  the  publication  of  an  apology  in  full  for  his  cause 
of  action,  and  that  such  apology  had  been  published.1286 
And  it  seems  that  an  agreement  that  the  slanderer  should 
write  a  letter  to  a  third  party,  exculpating  the  person  slan- 
dered from  the  charge,  is  satisfaction  of  the  injury,  and  his 
so  doing  is  evidence  of  an  accord  and  satisfaction.1287  For- 
merly a  defence  of  accord  and  satisfaction  did  not  require  to 
be  specially  pleaded.1288    Now  it  must  be  pleaded  specially. 

§  251.  A  former  recovery  for  the  same  cause  is  a  bar  to  an 
action  for  slander  or  libel.1289     A  judgment  in  an  action  of  slan- 

12hfi  Boosey  v.  Wood,  3  Hurl.  &?  Colt.  484.  An  agreement  not  to  bring  any  ac- 
tion in  consideration  of  the  defendant's  destroying  certain  documents  relating  to 
the  charge  imputed  to  the  plaintiff,  which  the  defendant  accordingly  destroyed, 
held  to  be  evidence  of  accord  and  satisfaction.  (Lane  v.  Applegate,  1  Stark.  97.) 
Where,  in  an  action  of  slander,  an  agreement  had  been  made,  in  consequence  of 
which  the  defendant  signed  a  paper  stating  that  "  at  his  request  the  plaintiff  had 
■consented  on  his  paying  the  costs  of  the  action  as  between  attorney  and  client, 
and  making  an  apology  for  his  conduct,  to  stay  the  proceedings  therein,"  the 
court  held  that  it  was  an  absolute  and  not  a  conditional  agreement,  and  in  de- 
fault of  defendant  paying  the  costs,  made  a  rule  absolute  for  signing  the  judg" 
ment  as  for  want  of  a  plea.  ( Yardrew  v.  Brook,  2  Key.  <fe  M.  835.)  As  to  the 
settlement  of  an  action  for  slander  as  the  consideration  for  a  promise,  see  Keson 
v.  Barclay,  2  Penn.  St.  R.  531 ;  approved  Morey  v.  Newfane  Township,  8  Barb. 
653.  By  Statute  6  &  7  Vict.  ch.  96,  it  is  provided  that  in  any  action  for  defama- 
tion, the  defendant,  after  notice,  may  give  in  evidence,  in  mitigation,  the  making 
or  offe"r  to  make  an  apology. 

1287  Smith  v.  Kerr,  1  Barb.  155.  See  Eiffe  v.  Jacob,  1  Jebb  &  Symes,  257. 
An  accord  and  satisfaction  by  one  or  some  of  several  wrong-doers,  is  a  satisfac- 
tion as  to  all.  (Strang  v.  Holmes,  7  Cow.  224;  Knickerbacker  v.  Colver,  8  2d. 
111.)  It  follows  that  a  partial  satisfaction,  by  one  of  several  wrong-doers,  is  a 
satisfaction  pro  tanto  as  to  all.  (Merchants'  B'k  v.  Curtis,  37  Barb.  320.)  As  to 
a  plea  of  apology  and  payment  into  court  in  England,  see  Stat.  6  &  7  Vict.  ch. 
96 ;  15  <fe  16  Vict.  ch.  76;  Chadwick  v.  Herepaih,  3  C.  B.  885;  O'Brien  v.  Clem- 
ents, 3  Dowl.  <fe  L.  676 ;  La/one  v.  Smith,  3  Hurl.  &  N.  735  ;  4  Id.  158;  Ingram 
v.  Ferguson,  1  New  Pr.  Cas.  486. 

i2sb  2  Greenl.  Ev.  321 ;  Lane  v.  Applegate,  1  Stark.  97 ;  King  v.  Waring,  6 
Esp.  13 ;  Eiffe  v.  Jacob,  1  Jebb  &  S.  257. 

1289  Campbell  v.  Butts,  3  N.  Y.  173.  The  plaintiff  having  once  recovered, 
cannot  afterwards  recover  for  any  subsequent  loss  by  the  same  words.  (Bull.  N. 
P.  7.)  Where  the  cause  of  action  is  the  same,  a  judgment  between  the  same  par- 
lies is  binding  on  each,  and  it  is  immaterial  that  the  form  of  action  is  different,  if 
the  cause  of  action  be  the  same.     (Hitchin  v.  Catnpbell,  2  Bl.  R.  827.) 


FORMER  RECOVERY.  341 

der,  for  a  particular  charge,  bars  any  other  action  against  the 
defendant  in  that  action  for  the  same  charge,  though  made  on 
a  different  occasion,  if  made  before  suit  brought ;  and,  there- 
fore, though  there  be  but  one  count  for  particular  words,  proof 
that  they  were  spoken  by  defendant  on  distinct  occasions  be- 
fore suit  commenced  is  competent.1290  It  is  no  bar  to  an  action 
for  slander  or  libel  that  in  a  former  action  for  the  publication 
of  the  same  words,  on  an  occasion  different- from  that  alleged  in 
the  declaration,  the  defendant  obtained  a  verdict  and  judgment 
in  his  favor.  It  was  not  for  the  same  cause  of  action.1291  A  re- 
covery by  the  husband  for  slanderous  words  spoken  of  himself 
and  wife,  is  not  a  bar  to  another  action  by  the  wife  for  the  same 
slanderous  words,  in  which  the  husband  is  joined  as  a  nominal 
party  plaintiff.1292  A  recovery  in  an  action  for  malicious  pros- 
ecution is  a  bar  to  a  subsequent  action  for  slander,  for  the  accu- 
sation uttered  for  the  purpose  of  having  the  arrest  made,  and 
on  the  occasion  when  it  was  made.1293  But  where  the  defend- 
ant published  the  accusation  before  or  after  making  his  com- 
plaint to  have  the  plaintiff  arrested,  an  action  for  that  publica- 
tion is  not  barred  by  the  recovery  in  the  action  for  the  ma- 
licious prosecution.1294  An  application  for  a  criminal  informa- 
tion against  a  party  for  the  publication  of  a  libel,  which  appli. 

mo  Root  v.  Lowndes,  6  Hill,  518. 

1291  Henson  v.  Veach,  1  Blackf.  369. 

1292  Bash  v.  Sommer,  20  Penn.  (8  Harris)  159;  and  see  ante,  note  120.  A  re- 
covery against  one  of  several  parties  to  a  joint  tort  frequently  precludes  the 
plaintiff  from  proceedings  against  any  other  party  not  included  in  such  action. 
(Cro.  Jac.  74;  Yelv.  68.)  But  where  the  evidence  and  the  damage  in  the  two  ac- 
tions might  be  different,  as  where  two  persons  on  different  occasions  have  pub- 
lished the  same  libel,  separate  actions  may  be  supported  against  each.  (2  B.  & 
P.  69.)  Where  a  verdict  with  nominal  damages  (40s.)  had  been  obtained  against 
the  publisher  of  a  libel,  that  was  held  not  to  be  any  justification  in  an  action 
against  the  author  of  the  libel,  nor  to  furnish  any  reason  for  not  giving  substantial 
damages,  and  the  plaintiff  had  a  verdict  for  £450.  (Frescoe  v.  May,  2  Foster  & 
Fin.  123.)  The  pendency  of  other  actions  against  other  publishers  of  the  same 
defamatory  matter,  not  a  mitigating  circumstance.  {Harrison  v.  Pearce,  1  Foster 
<fc  Fin.  567.) 

1293  Sheldon  v.  Carpenter,  I  N.  Y.  579. 

1294  Rockwell  v.  Brown,  36  N.  Y.  207. 


342  DEFENCES. 

cation  has  been  refused,  is  no  bar  to  an  action  on  the  case  for 
the  same  ground  of  complaint.1295  At  one  time  the  defence  of 
a  former  recovery  might  be  given  in  evidence  under  the  gen- 
eral issue ; 1296  now,  the  defence  of  a  former  recovery  must  be 
pleaded.         • 

§  252.  Whatever  else  may  be  intended  by  the  phrase  "  free- 
dom of  the  press,"  or  "  liberty  of  the  press,"  it  means  the  free- 
dom or  liberty  of  those  who  conduct  the  press.  This  freedom 
or  liberty,  properly  understood,  means  only  that  for  which 
Milton  put  forth  his  eloquent  plea :  "  unlicensed  printing." 
"  The  liberty  of  the  Press  consists  in  printing  without  any  pre- 
vious license,  subject  to  the  consequences  of  law.  The  licen- 
tiousness of  the  Press  is  Pandora's  box,  the  source  of  every 
evil."1297  "  The  liberty  of  the  Press  is  connected  with  natural 
liberty.  The  use  and  liberty  of  speech  were  antecedent  to 
Magna  Charta,  and  printing  is  only  a  more  extensive  and  im- 
proved kind  of  speech." 1298  "  The  liberty  of  the  Press,  there- 
fore, properly  understood,  is  the  personal  liberty  of  the  writer 
to  express  his  thoughts  in  the  more  improved  way  invented  by 
human  ingenuity  in  the  form  of  the  Press."1299  "  The  liberty 
of  the  Press  consists  in  the  right  to  publish  with  impunity, 
truth  with  good  motives  and  for  justifiable  ends,  whether  it 
respects  governments,  magistracy,  or  individuals."1300     In  the 

1295  Wahley  v.  Cooke,  16  Law  Jour.  Rep.  225,  Ex.;  9  Law  Times,  513 ;  16  M. 
&  W.  822. 

1296  Campbell  v.  Butts,  3  Corns.  173. 

1297  Attributed  to  Lord  Mansfield,  cited  Boot  v.  King,  1  Cow.  628,  and  com- 
mented on  1  Mence  on  Libel,  158. 

1299  Essay  on  the  liberty  of  the  Press,  chiefly  as  it  respects  personal  slander, 
page  6,  Bishop  Hayter. 

1299  Holt  on  Libel,  B'k  1,  ch.  iv. 

1300  Hamilton  arg.  The  People  v.  Croswell,  3  Johns.  Cas.  360.  And  see  The 
Federalist,  No.  81;  The  Fourth  Estate;  Areopagitica,  a  speech  for  the  liberty  of 
unlicensed  printing  (Holt  White's  edition  is  the  best);  Story  on  the  Constitution, 
§§  1880  to  1889;  1  Tindal's  Continuation  of  Rapin's  History  of  England,  350; 
remarks  on  Pulteney's  bill  to  prohibit  the  circulation  of  unlicensed  newspapers. 


FREEDOM   OF   THE   PRESS.  343 

sense  of  unlicensed,  the  press  has  been  free  since  A.  D.  1694.1301 
And  except  in  respect  to  newspapers,  no  greater  degree  of  lib- 
erty for  the  press  has  ever  been  claimed.  But  as  respects  news- 
papers, it  is  argued  that  the  exigencies  of  the  business  of  a 
newspaper  editor  demand  a  larger  amount  of  freedom.  That 
circumstances  do  not  permit  editors  the  opportunity  to  verify  the 
truth,  prior  to  publication,  of  all  they  feel  called  upon  to  pub- 
lish, and  that  they  should  not  be  responsible  for  the  truth  of 
what  they  publish.  '  Some  concessions  have  already  been  made 
to  these  arguments.  At  present  the  law  takes  no  judicial  cog- 
nizance of  newspapers,  and  independently  of  certain  statutory 
provisions  the  law  recognizes  no  distinction  in  principle  be- 
tween a  publication  by  the  proprietor  of  a  newspaper,  and  a 
publication  by  any  other  individual.1802  A  newspaper  proprie- 
tor is  not  privileged  as  such  in  the  dissemination  of  news,  but  is 
liable  for  what  he  publishes  in  the  same  manner  as  any  other  indi- 
vidual.1303 This  being  the  case,  after  referring  to  the  statutory 
provisions  affecting  publications  in  newspapers,  it  will  be  unnec- 
essary separately  to  consider  what  a  newspaper  proprietor  mayor 

1301  On  the  introduction  of  the  printing  press  into  England,  at  the  expense  of 
the  Government,  the  press  was  regarded  as  a  State  right,  and  subject  to  the  co- 
ercion of  the  crown.  (See  Hills  v.  University  of  Oxford,  1  Vernon,  275 ;  Basket 
v.  University  of  Cambridge,  2  Burr.  661.)  It  was  regulated,  therefore,  by  the 
King's  proclamations,  prohibitions,  charters  of  privileges  and  licenses,  and  then 
by  the  decrees  of  the  Court  of  Star  Chamber  until  the  abolition  of  that  court  in 
1641.  The  Long  Parliament  in  1643  assumed  the  power  of  licensing,  and  this  was 
continued  by  various  statutes  till  1694.  The  printing  press  was  regarded  as  too 
dangerous  a  contrivance  to  be  suffered  to  be  free.  Governor  Dongan  was  instructed 
(A.  D.  1688)  not  to  allow  any  printing  press  in  New  York,  although  Massachusetts 
had  at  that  time  enjoyed  a  printing  press  for  nearly  thirty  years.  The  Constitution 
of  the  United  States  provides :  Congress  shall  make  no  law  abridging  the  free- 
dom of  speech  or  of  the  press.  (Am'd'mt  of  1789,  art.  i.)  The  Constitution  of 
New  York  provides :  Every  citizen  may  freely  speak,  write,  and  publish  his  sen- 
timents on  all  subjects,  being  responsible  for  the  abuse  of  that  right,  and  no  law 
shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press. 
(Constitution  of  1846,  art.  7,  §  8.)  This  is  repeated  in  the  bill  of  rights  of  that 
State,  and  similar  provisions  are,  we  believe,  to  be  found  in  the  Constitution  of 
every  State  of  the  Union. 

1302  Davison  v.  Duncan,  36  Eng.  Law  &  Eq.  R.  218 ;  Campbell  v.  Spottiswoode , 
8  Law  Times  Rep.  N.  S.  201 ;  3  Fost.  &  Fin.  421. 

1303  Scheckell  v.  Jackson,  10  Cush.  25. 


344  DEFENCES. 

may  not  publish  with  impunity  ;  we  can  review  his  rights  and 
duties  under  the  general  head  of  criticism.1304 

§  253.  To  criticise,  in  its  widest  signification,  means  pass- 
ing an  opinion,  commenting.  In  this  sense  every  one  is  contin- 
ually criticising,  and  every  one  is  as  continually  furnishing  an 
occasion  for  criticism.  Criticism  may  mean  praise  or  censure. 
The  latter  is  the  sense  in  which  it  is  most  frequently  employed, 
and  is  the  only  sense  in  which  it  enters  into  our  present  inquiry. 
"We  use  criticism  as  a  synonym  for  "  fault-finding."  Sometimes 
the  term  criticism  is  limited  so  as  to  indicate  only  u  fault-find- 
ing "  in  matters  of  literature  and  art,  or  in  respect  to  persons 
engaged  in  offices  of  public  trust.  "We  do  not  attempt  to  de- 
fine, with  any  degree  of  precision,  what  is  the  ordinary  sense  of 
the  term  criticism,  because  we  believe  it  has  no  definite  conno- 
tation, and  because  we  do  not  recognize  any  distinct  or  inde- 

1304  Among  the  statutory  provisions  relating  to  libels  in  newspapers  are:  38 
Geo.  III.  ch.  78,  entitled,  An  act  to  prevent  the  publication  of  newspapers  by  per- 
sons not  known,  <fec,  among  other  provisions  requires  that  before  any  newspaper 
is  started  the  proprietor  must  file  an  affidavit,  by  the  printer,  publisher,  and  pro- 
prietor, stating  the  place  where  the  paper  is  to  be  printed,  and  its  title.  This 
act  was  amended  5  Wm.  IV.  ch.  2.  32  Geo.  III.  ch.  60,  entitled,  An  act  to  remove 
doubts  respecting  functions  of  juries  in  cases  of  libel.  This  is  the  statute  en- 
abling juries  to  give  a  general  verdict  in  actions  for  libel.  The  1 8th  section 
provides  for  a  discovery  in  actions  of  libel.  60  Geo.  III.  ch.  8,  amended  1  Geo. 
IV.  ch.  73;  to  prevent  and  punish  blasphemous  libels.  60  Geo.  III.  ch.  9;  to 
restrain  abuses  arising  from  the  publication  of  blasphemous  libels.  This  act  re- 
quires newspaper  proprietors  to  give  security  to  pay  the  damages  and  costs  in 
actions  for  libels  published  in  the  papers  owned  by  them.  6  &  7  Vict.  ch.  96 ; 
an  act  to  amend  the  law  respecting  defamatory  words  and  libel.  (Amended  8  & 
9  Vict.)  It  provides,  among  other  things,  that  in  actions  for  libels  in  newspapers 
or  periodicals,  the  defendant  may  plead  that  the  libel  was  inserted  without  actual 
malice  and  without  gross  negligence,  and  before  the  action,  or  at  the  earliest  op- 
portunity afterwards,  he  published  an  apology,  and  gives  liberty  with  the  plea  of 
apology  to  pay  money  into  court.  This  act  it  has  been  held  does  not  apply  to 
criminal  prosecutions.  Reg.  v.  Duffy,  2  Cox.  Cr.  Cas.  45 ;  as  to  this  statute,  see 
Chadwick  v.  Herepath,  3  C.  B.  885;  O'Brien  v.  Clements,  3  Dowl.  &  L.  676; 
Smith  v.  Harrison,  1  Fost.  cfc  Fin.  365 ;  Jones  v.  Mackie,  3  Law  Rep.  1,  Ex.  As 
to  the  statutes  of  Geo.  III.  see  Re  Chaplin,  2  Hurl.  &  Colt.  270 ;  Re  Clements,  12 
Law  Times,  380 ;  18  Law  Jour.  304,  Ex. ;  Re  Gregory,  13  Law  Times,  142 ;  6  Eng. 
Law  and  Eq.  Rep.  579.  See  in  notes  1122,  1287,  ante  ;  and  Laws  of  N.  Y.  1852,. 
ch.  165  ;  Id,  1868,  ch.  430  ;    San  ford  v.  Bennett,  24  K  Y.  20. 


CRITICISM.  345 

pendent  right,  such  as  seems  generally  supposed  to  be  implied 
in  or  to  exist  under  the  designation  of  criticism.  In  our  opin- 
ion, one  cannot,  by  styling  defamatory  matter  criticism,  and 
the  defamer  a  critic,  escape  from  those  rules  which  apply  to 
defamatory  matter  generally. 

§  254.  Criticism  admits  only  of  the  division  into  criticism 
of  persons  and  criticism  of  things.  What  one  does,  one's  ac- 
tions, are  things,  and  as  such  have  a  separate  existence,  distinct 
from  the  person.  Every  action,  every  thing  one  does,  is  natur- 
ally and  necessarily  the  subject  of  comment.  Every  action, 
every  thing  one  does,  confers  a  privilege  upon  every  person  to 
speak  or  write  concerning  such  action  c/r  thing.  As  to  such  ac- 
tion or  thing  every  one  may,  in  good  faith,  speak  or  write  what- 
ever seems  to  him  fit  to  be  spoken  or  written  [§  204].  Save 
good  faith,  there  is  no  limit  to  criticism  concerning  a  man's  ac- 
tions, or  his  creations.  "  God  forbid  (exclaimed  Baron  Alder- 
son)1303  that  you  should  not  be  allowed  to  comment  on  the 
conduct  of  all  mankind,  provided  you  do  it  justly  and  honorably." 
"  No  one  can  doubt  the  importance  in  a  free  government  of  the 
right  to  canvass  the  acts  of  public  men,  and  the  tendency  of 
public  measures  ;  to  censure  boldly  the  conduct  of  rulers  and 
to  scrutinize  the  policy  and  plans  of  government.  This  is  the 
great  security  of  a  free  government.,' 1306  "  An  editor  may  com- 
ment freely  on  the  acts  of  government,  officers  or  individuals, 
and  indulge  in  occasional  mirth  and  wit,  and  it  is  only  when 
the  character  of  the  publication  is  malicious,  and  its  tendency 
to  degrade  and  excite  to  revenge,  that  it  is  condemned  by  the 
law  and  subjects  the  publisher  to  prosecution."  im  "  Liberty 
of  criticism  must  be  allowed,  or  we  should  have  neither  purity 
of  taste  or  of  morals.  Fair  discussion  is  essentially  necessary 
to  the  truth  of  history  and  the  advancement  of  science.  That 
publication,  therefore,  I  shall  never  consider  as  a  libel,  which 
has  for  its  object,  not  to  injure  the  reputation  of  any  individ- 


1306  Gathercole  v.  Mall,  15  M.  cfe  W.  319. 
13,r'  ^tory  on  the  Constitution,  §  1888. 

1307  Tappan  v.  Wilson,  1  Ohio,  193. 


346  DEFENCES. 

ual,  but  to  correct  misrepresentations  of  fact,  to  refute  sophis- 
tical reasoning,  to  expose  a  vicious  taste  in  literature,  or  to  cen- 
sure what  is  hostile  to  morality."1308 

§  255.  But,  as  respects  the  person,  except  in  the  instances 
and  to  the  extent  heretofore  pointed  out,  there  is  no  privilege 
of  criticism.  Defamatory  language  concerning  a  person,  can 
never  be  justified  on  the  ground  that  it  was  published  as  a  crit- 
icism. Whenever  defamatory  matter  concerning  a  person  is 
justifiable,  it  is  on  some  other  ground  than  criticism.  "  No 
man  has  a  right  to  render  the  person  or  abilities  [inseparable 
incidents  to  the  person]  of  another  ridiculous."1309  "I  think 
no  personal  ridicule  of  the  author  is  justifiable."  1310  If  an  author 
"  has  made  himself  ridiculous  by  his  writings,  he  may  be  ridi- 
culed ;  if  his  works  show  him  to  be  vicious,  his  reviewer  may 
say  so.  But  the  latter  has  no  right  to  violate  the  truth  in  either 
respect." 1311  "  If  the  jury  can  discover  anything  personally  slan- 
derous against  the  plaintiff  (an  author)  unconnected  with  the 
works  he  has  given  to  the  public,  in  that  case  the  plaintiff  has 
a  good  cause  of  action." 1312     Without  pretending  to  elicit  the 

1308  L'd  Ellenborough,  Tabart  v.  Tipper,  1  Camp.  350 ;  and  see  Cooper  v.  Stone, 
24  Wend.  442.  An  application  for  an  information  was  refused  against  one  for 
publishing  that  Ward's  pill  and  drop  had  done  great  mischief  in  twelve  different 
cases,  and  that  they  were  a  compound  of  poison  and  antimony,  <fec.  (Rex  v. 
Roberts,  3  Bac.  Abr.  tit.  Libel,  492.) 

1309  Holt,  Ch.  J.,  Rex  v.  Tutchin,  2  L'd  Raym.  1061. 

1310  Best,  Ch.  J.,  Thompson  v.  ShacMl,  1  Mo.  &  Malk.  187. 

1311  Cooper  v.  Stone,  24  Wend.  442.  Does  not  this  mean  the  reviewer  can  only 
justify  ridiculing  an  author,  or  accusing  him  of  being  vicious,  by  a  defence  of 
truth. 

1312  L'd  Ellenborough,  Carr  v.  Hood,  1  Camp.  358.  But  in  the  same  case 
his  Lordship  is  reported  to  have  said :  "  If  the  defendant  only  ridiculed  the  plain- 
tiff as  an  author,  the  action  could  not  be  maintained." 

In  the  case  of  Stuart  v.  Lovell,  2  Stark.  Cas.  73,  the  plaintiff  being  one  of  the 
proprietors  of  the  Courier  newspaper,  brought  his  action  for  libel  against  the 
defendant,  the  editor  of  the  Statesman  newspaper.  Lord  Ellenborough,  in 
charging  the  jury,  observed  :  "  In  the  first  place,  the  plaintiff  was  described  as 
the  prostituted  Courier,  and  his  full-blown  baseness  and  infamy  were  represented 
as  holding  him  fast  to  his  present  connections,  and  preventing  him  from  forming 
new  ones.     It  was  certainly  competent  in  one  public  writer  to  criticise  another,  ex- 


CRITICISM.  347 

true  source  of  the  confusion  of  thought  so  obvious  in  all  the 
dicta  and  decisions  upon  the  subject  of  criticism,  we  venture  to 
assert  that  the  difficulty  is  occasioned  by,  (1)  overlooking  the  dis- 
tinction between  language  concerning  the  person  and  language 
concerning  a  thing;  and  (2)  in  treating  certain  persons — 
authors,  artists,  &c. — as  if  a  rule  applied  to  them  and  to  their 
productions,  different  from  the  rules  which  apply  to  the  manu- 
facturer and  the  merchant.  It  seems  not  to  have  been  kept  in 
view  that  an  author  is  but  a  producer,  and  the  maker  of  a 
watch  is  an  author  ecpally  with  the  maker  of  a  book.  There 
is  nothing  at  this  day  in  the  vocations  of  the  author,  the  actor, 
the  painter,  or  the  sculptor  which  makes  the  rights  and  duties 
of  those  who  follow  them  less  or  greater  than  the  rights  and 
duties  of  those  engaged  in  any  other  employment.  We  should 
judge  language  concerning  an  author,  or  an  artist,  by  the  same 
rules  as  we  judge  language  concerning  a  lawyer,  or  a  physician, 
a  merchant,  or  a  mechanic.  "  There  is  no  doubt  that  a  man 
who  is  an  author  has  a  right  to  have  his  character  protected  the 
same  as  if  he  acted  in  any  other  capacity.  However,  notwith- 
standing that,  whatever  is  fair  and  can  be  reasonably  said  of 
the  works  of  authors,  or  of  themselves  as  connected  with  their 
works,  is  not  actionable,  unless  it  appear  that  under  the  pre- 
text of  criticising  the  works,  the  defendant  takes  the  opportu- 
nity of  attacking  the  character  of  the  author,  and  then  it  will 
be  a  libel." 1313  "  I  will  not  stop  to  weigh  the  argument  which 
would    disfranchise    him    (the    plaintiff)    because    he    is   an 

erting  his  talents  in  all  the  latitude  of  free  communication  belonging  to  a  public 
writer;  and  so  it  appeared  to  Lord  Kenyon,  in  Heriot  v.  Stuart,  1  Esp.  Cas.  337, 
that  the  opinions  and  principles  of  a  public  writer  were  open  to  criticism  and  rid- 
icule, in  the  same  way  as  those  of  any  other  author,  but  that  the  privilege  did 
not  extend  to  calumnious  remarks  on  the  private  character  of  the  individual.  In 
that  respect,  the  editor  of  a  newspaper  enjoyed  the  rights  of  protection  in  com- 
mon with  every  other  subject.  Since,  then,  the  defendant  in  this  case  had  stig- 
matized the  defendant  as  the  venerable  apostle  of  tyranny  and  oppression,  and  as 
a  man  whose  full-blown  baseness  and  infamy  held  him  fast  to  his  present  connec- 
tion, because  they  left  him  without  the  power  of  forming  new  ones  ;  in  all  this 
he  had  undoubtedly  overstepped  the  limits  which  had  been  drawn  and  by  which 
his  conduct  ought  to  have  been  regulated." 

1313  Tenterden,  C.  J.,  Macleod  v.  Wakley,  3  C.  &  P.  311. 


348  DEFENCES. 

author." 1314  The  essential  questions  in  every  case  of  criticism 
are,  (1)  Does  the  matter  upon  its  face  concern  a  thing ;  (2)  and 
if  it  does,  was  it  composed  and  published  in  good  faith.  What- 
ever other  questions  may  arise,  they  are  but  secondary,  and 
are,  as  already  noticed  [§  204],  material  only  so  far  as  they 
serve  to  furnish  answers  to  the  two  essential  questions  above 
mentioned. 

§  256.  It  was  held  to  be  within  the  limits  of  criticism  to 
publish  of  a  newspaper  :  "  It  is  the  most  vulgar,  ignorant,  and 
scurrilous  journal  ever  published  in  Great  Britain."  1315  This 
affected  only  the  character  of  the  newspaper,  and  not  (except 
remotely)  the  reputation  of  any  person.  So  it  is  within  the 
limits  of  criticism  to  publish  of  a  painting,  that  it  was  a  mere 
daub,  with  other  strong  terms  of  censure ; 1316  or  of  an  architect, 
that  he  acts  on  absurd  principles  of  art.1317  In  both  of  the  two 
last  preceding  cases,  it  was  left  to  the  jury  as  a  question  of  fact, 
whether  the  censure  wras  unfair  and  intemperate,  and  intended 
to  injure  the  persons  of  the  plaintiffs.  It  was  held  not  to  be 
within  the  limits  of  criticism  to  publish  of  the  plaintiff,  a  Hor- 
ticultural exhibitor,  "  the  name  of  G.  is  to  be  rendered  famous 
in  all  sorts  of  dirty  work ;  the  tricks  by  which  he,  and  a  few 
like  him,  used  to  secure  prizes,  seem  to  have  been  broken  in 
upon  by  some  judges,  more  honest  than  usual.  If  G.  be  the 
same  man  who  wrote  an  impudent  letter  to  the  Metropolitan 
Society,  he  is  too  worthless  to  notice ;  if  he  be  not  the  same 
man,  it  is  a  pity  that  two  such  beggarly  souls  could  not  be 
crammed  into  the  same  carcass." 1318     Nor  is  it  within  the  lim- 

1314  Cooper  v.  Stone,  24  Wend.  442.  In  all  cases  of  criticism,  "The  question  is 
one  of  good  faith."  (Id.)  "  The  only  question  is,  whether  there  was  any  excess 
in  the  comments,  that  was  matter  entirely  for  the  jury."  (Cockhurn,  C.  J.,  Kelly 
v.  Tinting,  1  Law  Rep.  701,  Q.  B.)  If  it  be  shown  that  the  comment  is  unjust, 
is  malevolent  and  exceeding  the  bounds  of  fair  opinion,  it  is  actionable.  ( Dib- 
din  v.  Swan,  1  Esp.  28.) 

wis  jjer{0t  v.  Stuart,  1  Esp.  Cas.  43*7 ;  but  it  was  in  that  case  held  actionable 
to  publish  of  a  newspaper,  that  it  was  low  in  circulation. 

1316  Thompsons.  Shackell,  1  Mo.  &  Malk.  187. 

1317  Soane  v.  Knight,  1  Mo.  &  Malk.  74. 

1318  Green  v.  Chapman,  4  Bing.  K  C.  92  ;   5  Sc.  340. 


CRITICISM.  349 

its  of  criticism  to  write  of  the  publisher  of  a  magazine,  that  he 
had  inserted  in  his  magazine  a  series  of  articles,  the  greater 
part  of  which  were  false  and  of  a  gross  character ; 1319  nor  to 
write  of  a  book  publisher,  that  he  had  published  books  of  an 
immoral  character,  and  ascribing  to  him  the  authorship  of  some 
silly  rhymes.1320  Where  the  plaintiff,  a  surgeon,  had  presented 
a  petition  to  Parliament  against  empirics  and  irregular  practi- 
tioners, and  defendant,  in  a  medical  journal,  had  commented  on 
the  petition,  reflecting  on  the  plaintiff  for  ignorance,  and  par- 
ticularly in  chemical  knowledge ;  and  the  judge  had  directed 
the  jury,  that  if  they  considered  the  libel  a  fair  comment  on 
the  petition,  and  not  a  malicious  effusion  against  the  plaintiff, 
and  also  if  they  considered  that  it  imputed  to  him  ignorance  in 
chemistry  only,  and  not  in  his  profession  as  a  surgeon,  to  find 
for  the  defendant,  which  they  did ;  the  Court  granted  a  new 
trial.1321  Where  the  plaintiff,  a  "  marine  store  dealer,"  had  ex- 
hibited a  placard  in  front  of  his  store,  offering  certain  prices 
for  kitchen  stuff,  candle  ends,  pewter,  plated  goods,  &c,  and 
proposing  to  fetch  them  from  private  houses.  Some  observa- 
tions upon  this  placard  had  been  made  by  a  magistrate  officially, 
upon  which  the  defendant  published  in  a  newspaper  an  article 
headed,  "  Encouraging  servants  to  rob  their  masters,"  and  im- 
puting that  the  placard  was  calculated  or  intended  to  encourage 
servants  to  rob  their  masters.  The  placard  was  held  to  be  a 
proper  subject  of  criticism,  and  as  the  article  did  not  go  be- 

1319  Colbum  v.  Whiting,  cited  Cooke  on  Defam.  58,  and  see  Cooper  v.  Stone,  24 
Wend.  432.  Where  it  is  said  not  to  be  within  the  limits  of  criticism  to  impute 
to  an  author,  falsehood  and  unworthy  motives  in  the  production  of  a  book. 

1320  Tabart  v.  Tipper,  1  Camp.  350,  the  rhymes  were: 

There  was  a  little  maid, 
And  she  was  afraid 

Her  sweetheart  would  come  to  her, 
She  bound  up  her  head, 
When  she  went  to  bed, 

And  she  fastened  her  door  with  a  skewer. 

and  were  followed  by  this  line  : 

Dixin  ego  vobis  Atticam  quandam  inessee  elegantiam. 

1321  Dunne  v.  Anderson,  3  Bing.  88.  The  reporter,  erroneously  as  we  think, 
puts  this  decision  on  the  ground  that  presenting  a  petition  to  Parliament  is  an 
act  not  obnoxious  to  criticism.  The  error  for  which  the  new  trial  was  granted 
was  the  direction  to  find  for  the  defendant  if  the  imputation  was  of  ignorance  in 
chemistry  only. 


350  DEFENCES. 

yond  the  placard,  or  attack  the  plaintiff  in  any  thing  not  fairly- 
arising  out  of  that  document,  it  was  held  privileged.1322 

1322  Paris  v.  Levy,  9  C.  B.  N.  S.  342;  2  Fos.  &  Fin.  71  (99  EDg.  C.  L.  <fc  Eq. 
Rep.)  It  was  held  not  to  be  a  libel  upon  a  dealer  in  coal  in  L.,  who  had  adver- 
tised genuine  Franklin  coal  for  sale,  to  publish  the  following  advertisement : 
"  Caution. — The  subscribers,  the  only  shippers  of  the  true  and  original  Franklin 
coal,  notice  that  other  coal  dealers  in  L.  than  our  agent,  J.  S.,  advertise  Franklin 
coal.  We  take  this  method  of  cautioning  the  public  against  buying  of  other 
parties  than  J.  S.,  if  they  hope  to  get  the  genuine  article,  as  we  have  neither 
sold  nor  shipped  any  Franklin  coal  to  any  party  in  L.,  except  our  agent,  J.  S." 
(Boynton  v.  Remington,  3  Allen,  397.) 

In  a  previous  note  (No.  1087)  we  directed  attention  to  the  views  of  Lord  Chief 
Justice  Cockburn  on  criticism;  we  recur  to  the  subject  to  give  some  extracts  from 
his  charge  in  the  case  of  Seymour  v.  Buttenvorth,  reported  at  length  in  the  "  Law 
Magazine  and  Law  Review"  (London),  February,  1863, and  given  in  an  abridged 
form  in  The  Monthly  Law  Reporter  (Boston),  May,  1863 ;  also  reported  3  Fost. 
&  Fin.  372.  The  plaintiff,  a  barrister,  Recorder  of  Newcastle-upon-Tyne,  and 
member  of  Parliament,  sued  for  an  alleged  libel  upon  him,  published  in  the  Law 
Magazine.  We  find  in  the  charge,  (L)  A  man's  public  political  conduct  is  mat- 
ter for  the  freest  and  fullest  discussion  on  the  part  of  a  writer  in  a  public  journal. 
(2.)  To  animadvert  on  those  who  lend  themselves  to  a  system  of  buying  and  sell- 
ing votes  in  Parliament,  "  is  within  the  legitimate  province  of  a  public  writer," 
but  if  he  goes  beyond  that,  and  asserts  that  one  "  has  bargained  to  sell  his  vote," 
it  is  a  charge  which  no  man,  whether  writing  in  public  or  in  private,  ought  to  dare 
to  make.  (3.)  All  men  who  occtipy  public  positions  must  submit,  now  and  then,  to 
be  a  little  roughly  handled,  and  to  be  uncourteously  and  even  unjustly  treated, 
and  people  must  not  be  too  thin-skinned  in  reference  to  such  matters.  It  has 
happened  to  everybody  who  has  had  anything  to  do  with  public  life,  to  have,  at 
one  time  or  other,  observations  made  upon  his  conduct  and  motives,  which,  in  all 
probability,  at  the  bottom  of  his  heart  he  has  felt  to  be  unfounded  and  unjust ; 
but  we  submit  to  it,  and  why  ?  because  we  know  that  upon  the  whole,  that  bring- 
ing, by  means  of  the  public  press,  the  conduct  and  motives  of  public  men  to  the 
bar  of  public  opinion,  is  the  best  security  for  the  discharge  of  public  duty. 
(4.)  It  is  claimed  that  although  the  conduct  of  a  public  man  is  open  to  public 
discussion,  his  private  conduct  is  not,  and  that  it  does  not  lie  in  the  mouth  of  a 
man,  who  has  attacked  another  with  reference  to  his  private  conduct,  to  say,  I  did 
it  only  in  the  fair  discharge  of  a  public  duty.  But  there  is  this  distinction  in 
this  case,  that,  however  true  that  proposition  may  be  with  reference  to  the  private 
conduct  of  a  private  individual,  the  plaintiff  does  not  occupy  the  position  of  a 
private  individual.  *  *  *  It  is  impossible  to  say  the  plaintiff  was 
not  a  public  man,  and  that  his  conduct,  if  it  had  reference  to  his  fitness  to  be  a 
public  man  and  to  occupy  a  public  position,  was  not  a  matter  fit  for  discussion. 
(5.)  I  must  dissent  from  the  proposition,  that  where  a  man  holds  a  public  posi- 
tion in  which  integrity,  honesty,  and  honor  are  essential  and  indispensable  quali- 
fications, if  in  his  private  conduct  he  shows  he  is  destitute  and  devoid  of  those 


CRITICISM.  351 

§  257.  As  the  right  of  criticism  is  confined  to  criticising  ac- 
tions or  things,  it  necessarily  follows  that  as  a  preliminary  to  all 

essential  elements,  that  it  is  not  a  fair  subject  for  public  animadversion  and  hos- 
tile criticism,  so  long  as  the  writer  confines  himself  within  the  bounds  of  truth  and 
within  the  limits  of  fair  and  just  observation.  Elsewhere  in  the  charge  his  Lord- 
ship speaks  of  the  rights  and  duties  of  a  public  writer,  and  generally  speaks  as 
if  a  public  writer  was  a  person  with  peculiar  rights  and  duties,  whereas  the  law 
recognizes  no  such  office  as  that  of  a  public  writer,  and  gives  him  no  privileges 
except  as  mentioned  ante,  note  1122.  We  do  not  consider  sound  the  distinction  be- 
tween public  men  and  private  men,  and  public  acts  and  private  acts.  To  say,  as 
is  said  in  the  fifth  of  the  foregoing  extracts,  that  one  may  criticise  "  so  long  as 
the  writer  confines  himself  within  the  bounds  of  truth  and  within  the  limits  of  fair 
and  just  observation,"  is  merely  saying  one  may  publish  the  truth  and  criticise 
where  it  is  fair  and  just  to  do  so.  To  limit  criticism  to  just  criticism,  is  in  effect 
to  toll  the  right  of  criticism,  as  it  substitutes  the  judgment  of  the  jury  for  the 
judgment  of  the  critic.  In  another  case,  Strauss  v.  Francis,  also  tried  before 
Lord  Cockburn  (we  quote  from  a  newspaper  report),  the  plaintiff  was  the  author 
of  a  novel  called  "  The  Old  Ledger,"  and  the  defendant,  the  editor  of  the  Athe- 
naeum. The  defendant  published  a  criticism  of  this  novel,  for  which  the  plain- 
tiff brought  an  action  for  libel,  and  on  the  trial  withdrew  a  juror.  The  defend- 
ant then  published  an  article  under  the  heading  "  The  Rights  of  Criticism,"  in 
which  he  republished  the  original  criticism,  with  comments  on  the  trial  at  which 
the  plaintiff  withdrew  a  juror.  The  judge  charged  the  jury,  "  that  the  action 
related  to  two  separate  matters  of  complaint,  which  should  be  kept  distinct — first, 
the  review  of  the  work  ;  next,  the  comments  on  the  trial.  The  republication  of 
the  criticism  on  the  work  brought  it  under  the  notice  of  the  jury,  and  it  would 
be  for  them  to  say  whether  the  criticism  was  fair  and  reasonable,  or  whether  the 
writer  of  it  was  actuated  by  malice.  That  it  was  severe  there  could  be  no  doubt, 
but  the  question  was,  was  the  severity  warranted  by  the  nature  of  the  book.  It 
was  conceded  that  it  was  of  vast  importance  to  literature,  and  through  literature, 
to  the  morals,  religion,  good  taste,  and  good  feelings  of  the  public,  that  works 
which  were  laid  before  them  for  their  perusal  should  be  of  such  a  character  that 
they  would  improve  and  not  demobilize.  It  was,  therefore,  right  and  wholesome 
that  criticism,  so  long  as  it  was  fair  and  just,  should  be  allowed  the  largest  lati- 
tude. Authors  courted  criticism,  because,  if  it  were  favorable,  it  would  secure 
popularity  for,  and  extend  the  circulation  of,  their  works ;  but,  as  they  chal- 
lenged criticism,  they  should  submit  to  it  when  it  was  adverse,  so  long  as  it  was 
not  prompted  by  recklessness  or  malice.  It  had  been  contended  on  behalf  of  the 
plaintiff  that  it  was  unfair  to  select  isolated  passages  from  a  work  and  fasten  on 
them,  disparaging  the  spirit  and  character  and  object  of  the  entire  book;  but 
that  observation  was  open  to  this  remark,  that  it  was  not  because  a  work  might, 
as  a  whole,  be  good,  that  a  critic,  if  he  found  many  passages  of  an  obnoxious 
character,  must  abstain  from  commenting  on  them.  That  some  of  the  passages 
read  warranted  the  charge  of  indelicacy,  some  the  charge  of  profanity,  and  many 
of  them  the  charge  of  gross  vulgarity,  was,  he   thought,  a  matter  as  to  which 


352  DEFENCES. 

right  of  criticism,  it  must  appear  that  the  action  or  thing  criti- 
cised had  an  existence ;  therefore,  a  justification  on  the  ground 

they  could  not  fail  to  give  an  answer  in  the  affirmative.  The  fair  critic  was  a  prose- 
cutor who  brought  to  the  bar  of  public  opinion,  offenders  against  good  taste,  against 
delicacy  and  propriety.  The  work  in  question  was  denounced  as  being  abomina- 
ble. That  was  no  doubt  a  strong  expression.  It  was  for  the  jury,  having  the 
book  before  them,  and  having  heard  what  had  been  said  for  and  against  it,  to 
say  whether  the  criticism  in  question  was  a  fair  representation  of  the  character 
of  the  work.  The  jury  found  for  the  defendant.  See  4  Fost.  <fc  Fin.  939,  1107. 
In  another  case,  Campbell  v.  Spottisiooode,  we  quote  from  the  London  Quarterly 
Review  of  April,  1865,  art.  Libel.  The  plaintiff,  the  editor  of  the  British  Stan- 
dard, had  published  in  that  newspaper  a  series  of  appeals  on  behalf  of  Missions 
to  China.  The  alleged  libel  was  an  article  published  in  the  Saturday  Review, 
commenting  on  those  appeals,  and  in  which  the  plaintiff  was  called  an  "  impos- 
tor," and  charged  "  with  scandalous  and  flagitious  conduct."  On  a  trial,  before 
Lord  Cockburn,  the  plaintiff  had  a  verdict,  the  judge  charging  the  jury  that  the 
defendant  had  exceeded  the  limits  of  criticism,  and  added,  "  It  cannot  be  said 
that  because  a  man  is  a  public  man,  a  writer  is  entitled  not  only  to  pass  judgment 
upon  his  conduct,  but  to  ascribe  to  him  corrupt  and  dishonest  motives."  A  mo- 
tion for  a  new  trial  was  denied ;  Lord  Cockburn,  in  giving  judgment  (8  Law 
Times  Rep.  N.  S.  201 ;  3  Fost.  <fc  Fin.  421,  note),  said,  "But  it  seems  to  me 
that  a  line  must  be  drawn  between  hostile  criticism  upon  a  man's  public  conduct 
and  the  motives  by  which  that  conduct  may  be  supposed  to  be  influenced,  and 
that  you  have  no  right  to  impute  to  a  man  in  his  conduct  as  a  citizen — even 
though  it  be  open  to  ridicule  or  disapprobation — base,  sordid,  dishonest  or 
wicked  motives,  unless  there  is  so  much  ground  for  the  imputation  that  a  jury  shall  be 
of  opinion,  not  only  that  you  may  have  honestly  maintained  some  mistaken  belief 
upon  the  subject,  but  that  your  belief  is  well  founded  and  not  without  cause."  We  do 
not  understand  the  part  in  italics.  In  our  opinion  his  Lordship  should  have  said 
that  you  must  not  impute  dishonest  or  wicked  motives,  unless  you  can  establish 
the  truth  of  the  imputation.  He  came  very  near  to  our  views  in  Turnbull  v. 
Bird  (we  still  quote  from  the  London  Quarterly),  in  which  he  charged  the  jury, 
"  if  you  are  of  opinion  that  the  defendant,  in  1iie  comments  that  he  made,  was 
guilty  of  any  wilful  mis-statement  of  fact,  either  by  the  exaggeration  of  what 
actually  existed,  or  by  the  partial  suppression  of  what  actually  existed, 
so  as  to  give  it  another  color,  or  if  he  makes  his  comments  with  any 
mis-statement  of  fact,  which  he  must  have  known  to  be  a  mis-statement,  by  the 
exercise  of  ordinary  care,  then  he  loses  his  privileges,  and  the  occasion  does  not 
justify  the  publication."  (See  2  Fost.  &  Fin.  508.)  We  should  indorse  this  if 
the  words  in  italic  were  omitted.  See,  however,  Cooper  v.  Lawson,  8  Adol.  <fe  El. 
746. 

Publication,  by  Reform  Commissioners,  of  a  report  imputing  bribery  to 
plaintiff,  was  held  not  privileged.  (  Wilson  v.  Heed,  2  Fost.  &  Fin.  149.)  The 
plaintiff  was  the  publisher  of  Zadkiel's  Almanac,  an  astrological  publication  ;  the 
defendant  charged  that  the  plaintiff,  being  the  publisher  of  that  silly  work,  had 


CRITICISM.  353 

of  criticism  can  never  prevail,  unless  the  existence  of  the  ac- 
tion or  thing,  which  the  criticism  is  alleged  to  concern,  is  either 
admitted  or  proved.  An  alleged  criticism  consists  in  the  state- 
ment or  assumption  of  certain  facts,  and  of  comments  thereon. 
Where  these  facts  are  not  admitted,  to  constitute  a  justification 
their  existence  must  be  shown.  Hence,  to  justify  a  criticism, 
it  is  sometimes  necessary  to  allege,  that  the  facts  which  warrant 
a  criticism  exist,  and  that  the  comment  on  those  facts  is  fair. 
Where  the  defamatory  matter  was  that  plaintiff,  a  tradesman 
in  London,  became  surety  for  the  petitioners  in  the  Berwick 
election  petition,  and  falsely  stated  on  oath  a  sufficient  property 
qualification,  when,  in  truth,  he  was  not  able  to  pay  his  debts. 
It  then  asked  why  the  plaintiff,  being  unconnected  with  Ber- 
wick, should  take  so  much  trouble  and  incur  such  an  exposure 
of  embarrassments,  and  proceeded :  "  There  can  be  but  one  an- 
swer to  these  queries — he  is  hired  for  the  occasion."  The  de- 
fendant justified  as  true  all  the  publication,  except  the  charge 
of  being  hired,  as  to  which  no  mention  was  made,  and,  as  a 
further  defence,  that  the  publication  was  a  correct  report  of  judi- 
cial proceedings,  with  a  fair  and  bond  fide  commentary  thereon. 
Held,  it  was  properly  left  to  the  jury  to  say  whether  the  impu- 
tation that  the  plaintiff  was  hired  was  a  fair  comment.1323 

§  258.  As  criticism  is  opinion,  it  can  never  be  primarily 
material  to  inquire  into  its  justness.  The  right  to  criticise  im- 
plies the  right  to  judge  for  oneself  of  the  justness  of  the  criti- 
cism. It  would  be  but  a  delusion  to  say  one  has  the  right  to 
criticise  provided  the  criticism  be  just.  The  justness  or  un- 
justness  can  never  be  more  than  matter  of  opinion.      The  test 

gulled  by  means  of  a  magic  bull  of  crystal  in  which  future  events  could  be  seen ; 
held  that  this  could  be  justified  by  proving  that  plaintiff,  knowing  it  to  be  an  im- 
posture, took  money  from  the  public  for  the  use  of  said  bull.  (Morris  v.  Belcher,  8 
Fost.  &  Fin.  614.)  See  Eastwood  v.  Holmes,  1  Fost.  &  Fin.  341.  A  publication 
of  a  report  of  an  inspector  of  charities  under  the  charitable  trust  act,  containing 
a  letter  written  several  years  previously,  reflecting  on  plaintiff,  held  condition- 
ally privileged.  (Cox  v.  Feeney,  4  Fost.  <fc  Fin.  13.) 
J3M  Cooper  v.  Lawson,  8  Adol.  &  El.  746. 

23 


354  DEFENCES. 

always  is,  was  the  criticism  bond  fide.  It  is  like  the  case  of 
one  writing;  concerning  the  sanity  of  another ;  the  test  of  the 
justification  is  not,  was  the  statement  such  as  a  man  of  sound 
sense  would  have  made,  but  was  it  the  honest  conviction  of  the 
publisher  [§  206] .  Although  that  was  a  case  of  comment  or  giving 
an  opinion,  or  criticism,  was  a  criticism,  concerning  the  person, 
and  found  its  justification,  not  in  its  being  a  criticism,  but  be- 
cause the  publication  was  made  to  protect  the  interest  of  another. 
In  like  manner,  when  it  is  argued  that  the  right  to  criticise 
rests  upon  the  interest  which  the  community  generally  may  have 
in  the  subject  of  the  criticism,  it  is  a  confusion  of  two  different 
and  distinct  rights.  The  community  are  no  more  interested  in 
the  person  or  reputation  of  any  one,  than  in  the  person  or  repu- 
tation of  any  other  member  of  society.  Nor  is  there  any  foun- 
dation for  the  distinction  sometimes  attempted  to  be  drawn 
between  the  public  and  the  private  character  or  standing  of  an 
individual ;  and  although  there  are  isolated  dicta  that  appear  to 
favor  the  idea  that  a  person  occupying  a  public  situation  is 
thereby  rendered,  personally,  a  subject  of  criticism,  yet,  as  we 
conceive,  the  context  of  these  dicta  so  far  explains  them  as  to 
limit  the  right  of  criticism  to  the  actions.  Thus  it  has  been 
said :  "  Every  man  has  a  right  to  discuss  matters  of  public  in- 
terest. A  clergyman  with  his  flock,  an  admiral  with  his  fleet, 
a  general  with  his  army,  and  a  judge  with  his  jury — we  are  all 
of  us  the  subjects  for  public  discussion ;  and  provided  a  man, 
whether  in  a  newspaper  or  not,  publishes  a  comment  on  a  mat- 
ter of  public  interest,  fair  in  tone  and  temperate,  although  he 
may  express  opinions  that  you  may  not  agree  with,  that  is  not 
a  subject  for  an  action  for  libel ;  because  whoever  fills  a  public 
position,  renders  himself  open  to  public  discussion  ;  and  if  any 
part  of  his  public  acts  is  wrong,  he  must  accept  the  attack  as  a 
necessary  though  unpleasant  circumstance  attaching  to  his  posi- 
tion. In  this  country  everything,  either  by  speech  or  writing, 
may  be  discussed  for  the  benefit  of  the  public.  No  doubt,  there- 
fore, the  defendant  was  at  liberty  to  discuss  the  opinions  or 
proceedings  of  the  plaintiff.  If  he  has  done  it  fairly,  temper- 
ately and  calmly,  then  he  is  not  a  fit  subject  for  an  action  for 


CRITICISM.  355 

libel."  1324  "  Every  individual  has  a  right  to  comment  on  those 
acts  of  public  men  which  concern  him  as  a  subject  of  the  realm 
if  he  do  not  make  his  commentary  a  cloak  for  malice  and  slan- 
der. There  is,  indeed,  a  material  distinction  between  publica- 
tions relating  to  public  and  to  private  persons,  as  regards  the 
question  whether  they  be  libellous.  That  criticism  may  reason- 
ably be  applied  to  a  public  man  in  a  public  capacity,  which 
might  not  be  applied  to  a  private  individual."  1325  The  first 
sentence  in  this  last  quotation  refers  to  acts,  and  is  correct ;  and 
although  the  remarks  in  the  subsequent  sentences  profess  to 
apply  to  persons,  yet  they  can  be  regarded  as  stating  the  law 
correctly  only  by  limiting  them  to  the  acts  of  public  men. 
Apart  from  the  obsolete  statutes  of  scamdalum  magnatum  there 
is  no  distinction  of  persons,  nor  any  division  of  persons  into 
public  and  private  [§  181]. 

§  259.  The  supposed  distinction  between  matters  of  fact  and 
matters  of  opinion,  is  sometimes  referred  to  as  marking  the  dif- 
ference between  justifiable  or  unjustifiable  comment  or  criticism. 
Criticism,  it  is  said,  is  matter  of  opinion  ;  and  that  while  all  ex- 
pression of  opinion  is  justifiable,  a  statement  of  fact  is  not  jus- 
tifiable, unless  on  the  ground  of  truth.1326  This  view  is  unsound. 
In  one  sense  it  is  merely  the  expression  of  an  opinion  to  say  of 
a  minister  he  entered  the  pulpit  in  a  towering  passion  ;  but  such 
an  assertion  cannot  be  justified  as  criticism.1327 

§  260.  Stress  is  sometimes  laid  upon  the  fact  that  the  criti- 
cism is  upon  a,  public  act,  implying  that  it  is  the  publicity  of 
the  act  upon  which  the  right  of  comment  depends.  We  shall 
not  attempt  to  distinguish  between  public  and  private  acts,  be- 
cause we  are  of  the  opinion  that  it  cannot  directly  make  any 
difference  in  the  right  to  criticise,  whether  the  act  be  done  pri- 
vately or  publicly.     It  was  this  supposed  distinction  between 

1324  Bramwell,  B.,  Kelly  v.  Sherlock,  1  Law  Rep.  689,  Q.  B. 

1325  Parmiter  v.  Coupland,  6  M.  «fc  W.  108. 

1326  See  Popham  v.  Pickburn,  1  Hurl.  &  Nor.  891 ;  ante,  §  163,  and  note  398. 
13,7  Walker  v.  Brogden,  19  J.  Scott,  N.  S.  64. 


356  DEFENCES. 

public  and  private  acts,  which  occasioned  the  dubiety  on  the 
question  whether  a  sermon,  not  otherwise  published  than  by  its 
delivery  from  the  pulpit,  by  a  minister  to  his  congregation,  was 
the  subject  of  criticism.1328  A  churchwarden  having  written  to 
the  plaintiff,  the  incumbent,  accusing  him  of  having  desecrated 
the  church,  by  allowing  books  to  be  sold  in  it  during  the  service, 
and  by  turning  the  vestry-room  into  a  cooking  apartment, 
the  correspondence  was  published  without  the  permission  of 
the  plaintiff,  in  the  defendant's  newspaper,  with  comments  on 
the  plaintiffs  conduct.  Held,  that  the  correspondence  involved 
a  subject  of  public  interest,  which  might  be  made  the  subject  of 
public  discussion,  and  the  publication  of  the  correspondence  was 
not  actionable,  unless  the  language  used  was  stronger  than  the 
limits  of  fair  criticism  allow.1329  Upon  principle,  private  acts 
are,  equally  with  public  acts,  the  subjects  of  criticism.  But 
whether  the  act  be  a  public  or  a  private  act,  may  make  a  dif- 
ference in  determining  whether  the  criticism  MTas  in  good  faith. 

132B  Gathercolc  v.  Miall,  15  M.  <fc  W.  319  ;  10  Jurist,  337  ;  7  Law  Times,  89;  15 
Law  Jour.  Rep.  179,  Ex.  In  the  same  case  it  was  held  that  the  conduct  of  the 
vicar  of  a  parish,  in  establishing  a  parochial  institution  for  charitable  purposes,  by 
the  rules  of  which  all  persons  not  members  of  the  Church  of  England  are  excluded 
from  the  benefit  of  the  charity,  is  not  a  public  act  or  the  act  of  a  public  func- 
tionary, so  as  to  entitle  the  public  press  or  others  to  comment  on  it  as  such. 

1329  Kelly  v.  Tinlincj,  1  Law  Rep.  699,  Q.  B. 


CHAPTER  X. 


CORPORATIONS. 


Corporations  are  legal  persons.  Their  rights  and  duties  assimi- 
lated to  those  of  natural  persons.  Can  act  only  through 
agents.  May  carry  on  business,  sue  and  be  sued,  and  are 
liable  for  injuries  committed  by  agents.  Corporations  may 
have  a  reputation.  Language  concerning  corporations.  Ac- 
tions by  corporations  for  libel.  Corporations  cannot  be 
guilty  of  slander.     May  be  guilty  of  libel. 

§  261.  Corporations,  whether  aggregate  or  sole,  are  legal 
persons.  Hitherto,  attention  has  been  directed  exclusively  to 
language  published  by  or  which  concerned  natural  persons  or 
their  affairs  ;  it  will  now  be  in  order  to  consider  the  rights  and 
duties  of  legal  persons  or  corporations  in  respect  to  the  publi- 
cation of  language.  The  topic  has  been  comparatively  but  little 
adjudicated,  and  to  the  decisions  upon  it  the  remarks  contained 
in  a  former  section  [§  15]  appear  peculiarly  applicable.  The 
great  and  ever  increasing  number  of  corporations,  assuming  all 
the  functions  of  individuals,  has  created  a  tendency  in  the 
modern  decisions  to  assimilate,  so  far  as  possible,  the  rights  and 
duties  of  corporations  to  the  rights  and  duties  of  natural  per- 
sons.1330 It  is  the  distinctive  feature  of  a  corporation  that  it 
can  only  act  by  or  through  its  officers  or  agents  ; 1331  for  even  in 
the  case  of  a  corporation  sole,  the  individual  who  represents 
that  corporation,  and  the  corporation,  are  distinct  entities.  Or- 
dinarily, a  corporation  may  acquire  and  possess  property,  and 
carry  on  business,  and  it  may  sue  and  be  sued  in  like  manner  as 

a33n  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  28. 

1331  First  Baptist  Church   v.  Brooklyn  Fire  Ins.    Co.,  18  Barb.  69;  Story  on 
Agency,  §16. 


358  CORPORATIONS. 

an  individual,  and  is  liable  for  an  injury  committed  by  its  ser- 
vants or  agents,  in  all  cases  where,  under  like  circumstances,  an 
individual  would  be  liable.1332  Accordingly,  it  has  been  held 
that  an  action  lies  against  a  corporation  for  malicious  prosecu- 
tion or  for  a  trespass.1333 

§  262.  A  corporation,  like  an  individual,  may  have  a  repu- 
tation, and  a  good  reputation  is  equally  as  valuable  to  a  corpo- 
ration as  to  a  natural  person ; 1334  and  as  an  individual  may 
sustain  injury  by  language  affecting  his  reputation,  so  in  like 
manner  may  a  corporation.  As  in  regard  to  language  affecting 
individuals,  we  distinguish  between  language  concerning  the 
person  as  such,  and  language  concerning  the  person  in  a  trade, 
and  language  concerning  a  thing  or  the  affair's  of  a  person  ;  so 
in  regard  to  language  affecting  corporations,  we  must  distinguish 
between  language  concerning  a  corporation  for  different  objects, 
as  those  engaged  in  manufacturing,  trading  or  banking,  and 
those  not  so  engaged,  and  language  concerning  the  things  of  a 
corporation.  Of  course  language  concerning  the  corporators  is 
not  within  the  limits  of  our  present  inquiry.  Where  the  de- 
fendant published,  with  other  defamatory  matter,  that  his  hat 
had  been  stolen  by  some  of  the  members  of  No.  12  Hose  Com- 
pany. The  Hose  Company  was  a  volunteer  association,  and 
the  members  of  the  Association  brought  a  joint  action  for  this 
publication.     Held,  that  the  action  could  not  be  maintained.1335 

1333  First  Baptist  Church  in  Schen.  v.  Schen.  &  Troy  R.  R.  Co.,  5  Barb.  80,  and 
see  Pritchard  v.  Corporation  of  Georgetown,  2  Cranch  Cir.  Ct.  191 ;  Watson  v. 
Bennett,  12  Barb.  196 ;  New  Haven  R.  R.  Co.  v.  Schuyler,  34  N.  Y.  30,  208;  Hun- 
ter v.  Hudton  River  R.  R.  Co.,  20  Barb.  507 ;  Sharp  v.  Mayor  of  New  York,  40 
Barb.  273 ;  Rochester  White  Lead  Co.  v.  City  of  Rochester,  3  Corns.  468 ;  Green  v. 
London  Omnibus  Co.,  6  Jurist,  N.  S.  228. 

1333  Eastern  Counties  Railway  v.  Brown,  6  Ex.  314;  Roe  v.  Birkenhead  Railway 
Co.,  7  Ex.  36  ;  Goodspeed  x.  East  Haddam  Bank,  22  Conn.  530.  In  Owsley  v.  Mont- 
gomery <kc.  R.  R.  Co.,  1  Ala.  (S.  C.)  485,  it  was  held,  but  as  we  conceive  erro- 
neously, that  a  corporation,  although  liable  for  false  imprisonment,  was  not  liable 
for  malicious  prosecution  ;  and  in  Childs  v.  State  B'k  of  Mo.,  2  Ben.  213,  it  was 
held  that  neither  an  action  for  malicious  prosecution,  for  slander,  nor  for  false  im- 
prisonment, could  be  maintained  against  a  corporation ;  and  see  Stevens  v.  Midland 

Counties  R'way,  10  Ex.  355 ;  26  Eng.  Law  &  Eq.  R.  410. 

1334  Trenton  Ins.  Co.  v.  Perrine,  3  Zab.  402. 
1536  Giraud  v.  Beach,  3  E.  D.  Smith,  337. 


CORPORATIONS.  359 

§  263.  Language  concerning  a  corporation  not  engaged  in 
any  business,  can  hardly  occasion,  and  certainly  does  not  neces- 
sarily occasion  it  any  pecuniary  injury ;  therefore,  in  regard  to 
language  concerning  such  a  corporation,  no  action  can  be  main- 
tained except  upon  proof  of  special  damage  ;  but  as  regards  a 
corporation  engaged  in  manufacturing,  trading  or  banking,  or 
other  occupation  in  which  credit  may  be  material  to  its  success, 
there  language  concerning  such  a  corporation  calculated  to  inju- 
riously affect  its  credit,  must  necessarily  occasion  it  pecuniary 
injury,  and  in  such  a  case  an  action  may  be  maintained  by  the 
corporation  without  proof  of  any  special  damage.  Thus  as  re- 
gards language  concerning  corporations,  some  is  actionable  per 
se,  and  some  is  actionable  only  by  reason  of  special  damage. 

§  264.  In  the  case  of  an  action  by  a  corporation,  a  mutual 
life  insurance  company,  against  the  editor  of  a  newspaper,  for 
libel  in  charging  that  the  affairs  of  the  company  were  misman- 
aged, it  was  alleged  that  the  words  were  published  of  and  con- 
cerning the  company  in  their  business,  and  of  and  concerning  the 
directors  of  the  company,  and  of  and  concerning  the  president, 
vice-president  and  secretary  of  the  company,  and  of  and  concerning 
the  property  and  concerns  of  the  company,  and  of  and  concern- 
ing the  conduct  and  management  of  the  property  and  concerns 
of  the  company  by  the  aforesaid  directors  and  officers  of  the 
company ;  and  special  damage  was  charged  to  have  resulted  to 
the  company  in  a  loss  of  its  business,  and  a  diminution  of  its 
profits.  On  demurrer  to  the  complaint,  it  was  held  that  "  a 
corporation  aggregate  may  maintain  an  action  for  a  libel  for 
words  published  of  them  concerning  their  trade  or  business,  by 
which  they  have  suffered  special  damage."  And  that,  "in 
alleging  special  damage,  it  is  not  always  necessary  to  name  the 
customers  whose  business  has  been  lost  by  the  defamation  ;  but 
if  the  nature  of  the  business  is  such  as  to  render  that  impracti- 
cable, the  loss  of  the  business  may  be  alleged  generally.1' 1886  In 
another  case  it  was  held  that  a  joint  stock  company,  incorpo- 

1336  Trenton  Ins.  Co.  v.  Perrine,  3  Zab.  402. 


360  CORPORATIONS. 

rated  under  the  statute  19  and  20  Vict.,  ch.  47,  might  maintain 
an  action  for  libel,  and  that,  too,  against  a  shareholder  in  the 
company.1337  And  in  that  case  it  was  said  there  may  be  parti- 
cular kinds  of  libel  which  do  not  affect  a  corporation,  but  if 
injury  ensues  an  action  may  be  maintained.  Where  the  defend- 
ant published  in  a  periodical,  that  the  plaintiff,  an  incorporated 
bank,  "  was  liable  at  any  time  to  be  closed  up  by  an  injunction," 
the  plaintiff  brought  an  action  for  libel,  alleging  that  since  the 
publication  divers  persons  had  refused  to  receive  the  notes  of 
the  plaintiff,  and  had  refused  to  deal  with  it.  To  this  complaint 
there  was  a  demurrer ;  the  demurrer  was  overruled,  and  it  was 
held  that  a  good  cause  of  action  was  alleged  without  any  allega- 
tion of  special  damages  that  the  law  recognized  the  rights  of  a 
corporation  to  its  property  as  effectually  as  in  the  case  of  an 
individual.  An  appeal  was  taken  to  the  general  term,  where 
the  decision  was  affirmed.1338  Where  an  act  of  Parliament, 
after  reciting  the  difficulties  experienced  by  joint-stock  compa- 
nies in  suits  for  recovering  debts  and  enforcing  obligations,  and 
in  the  prosecution  of  offenders,  enacted  that  actions  commenced 
by  the  Hope  Company  for  recovering  debts,  enforcing  claims  or 
demands  then  clue,  or  which  thereafter  might  become  due  or 
arise  to  the  company,  might  be  commenced,  and  indictments  for 
offences  be  preferred,  in  the  name  of  the  chairman.  Held,  that 
the  chairman  might  sue  for  a  libel  on  the  company,  although 
it  was  not  a  corporate  body.1339 

§  265.  As  a  corporation  can  act  only  by  or  through  its  offi- 
cers or  agents  [§  261],  and  as  there  can  be  no  agency  to  slander 
[§  67],1340  it  follows  that  a  corporation  cannot  be  guilty  of  slan- 
der ;  it  has  not  the  capacity  for  committing  that  wrong.  If  an 
officer  or  an  agent  of  a  corporation  is  guilty  of  slander,  he  is 

1337  £fetropolitan  Saloon  Omnibus  Co.  v.  Hawkins,  4  Hurl.  &  Nor.  87. 
1331  Shoe  and  Leather  B'Jcy.  Thompson,  18  Abb.  Pra.  R.  413. 

1339  Williams  v.  Beaumont,  .10  Bing.  260;  3  M.  &  Sc.  705;  and  see  Woodward 
v.  Cotton,  1  Cr.  M.  &  R.  44. 

1340  Moloney  v.  Bartley,  3  Camp.  210 ;  Hecker  v.  BeGroot,  15  How.  Pra.  R.  314  :. 
and  note  50,  ante. 


CORPORATIONS.  361 

personally  liable,  and  no  liability  results  to  the  corporation. 
But  as  all  concurring  in  the  authorship  or  publication  of  a  libel 
are  alike  responsible  as  publishers  [§§  115, 117,  and  note  113], 
there  is  nothing  to  prevent  a  corporation  from  being,  in  law, 
the  publisher  of  a  libel,  and  from  being  held  liable  as  such  pub- 
lisher. A  corporation  may  sanction  the  publication  of  a  libel, 
and,  in  such  a  case,  the  corporation  is  the  publisher  of  the  libel, 
and  liable  in  like  manner  as  an  individual ;  not  because,  as  is 
sometimes  said,  a  corporation  may  act  with  malice,  but  because 
it  has  a  capacity  for  voluntary  action,  and  is  responsible  for 
such  action.  It  is  as  possible  for  a  corporation  as  for  an  indivi- 
dual to  act  maliciously,  i.  e.  with  a  bad  intent.  Accordingly  it 
has  been  held,  that  a  corporation  aggregate  may  well,  in  its  cor- 
porate capacity,  cause  the  publication  of  a  defamatory  statement 
under  such  circumstances  as  would  imply  malice,  in  law,  suffi- 
cient to  support  the  action  ;  and  there  may  be  circumstances  by 
which  express  malice  in  fact  might  be  proved,  such  as  to  make 
a  corporation  aggregate  liable  therefor  in  its  corporate  capa- 
city.1341 

1341  Whitfield  v.  South-East  R.  R.  Co.  1  Ell.  B.  &  E.  115;  Phil.  R.  R.  Co.  v. 
Quigley,  21  How.  U.  S.  Rep.  202;  Aldrich  v.  Press  Printing  Co.,  9  Min.  133; 
Alexander  v.  N.  East.  R.  R.  Co.,  34  Law  Jour.  Rep.  N.  S.  152;  Q.  B.  11  Jurist, 
N.  S.  619. 


CHAPTER  XL 


PKOCEEDINGS    IN   AN    ACTION. 


Action,  how  commenced.  Within  what  time.  In  what  court. 
Attachment.  Holding  defendant  to  hail.  Execution  against 
the  person.  Security  for  costs.  Place  of  trial.  Inspection 
and  discovery.  Assessment  of  damages  where  no  answer 
interposed.  Mode  of  trial.  Struck  jury.  Refusing  to  try. 
Right  to  hegin.  Address  of  counsel.  Reading  libel  to 
jury.  Evidence  for  plaintiff.  Abandonment' of  one  of 
several  causes  of  action  or  defence.  Province  of  the  court 
and  jury.     Damages.      Verdict.     New  trial.     Costs. 

§  266.  The  preceding  chapters  of  this  essay  have  been 
devoted  to  a  consideration  of  the  law  relating  to  the  wrongs 
called  slander  and  libel.  We  have  now  to  treat  of  the  remedy 
by  action  for  these  wrongs.  The  diversity  of  the  procedure  in 
the  courts  of  the  several  States,  renders  it  impossible  to  com- 
press within  any  convenient  space,  or  into  any  convenient  form, 
the  practice,  pleadings,  and  proceedings  in  actions  in  all  the 
States.  To  trace  in  detail  the  whole  proceedings  in  an  action 
in  any  one  State,  would  be  to  exceed  the  limits  of  our  subject. 
We  purpose,  therefore,  to  exhibit  so  much  of  the  course  of  pro- 
cedure in  an  action  in  the  courts  of  the  State  of  New  York,  as 
applies  either  exclusively  to  the  action  of  slander  or  libel,  or  as 
may  have  been  adjudicated  upon.  Our  remarks,  therefore, 
while  they  will  more  particularly  refer  to  the  State  of  New 
York,  will  occasionally  extend  to  other  States  and  to  the  prac- 
tice in  the  courts  of  England.  As  the  Code  of  Procedure  of 
the  State  of  New  York  has  been  the  model  for  the  codes  of 
procedure  of  other  States,  references  to  the  Code  of  New  York 
will  have  a  wide  field  of  practical  utility. 


PROCEEDINGS  IN  AN  ACTION.  363 

§  267.  The  action  for  slander  or  libel  is  commenced  by  sum- 
mons, in  the  form  known  as  a  summons  for  relief.  It  must 
with  certain  exceptions,  be  commenced  within  two  years  of  the 
time  of  the  publication,  and  within  the  lifetime  of  the  person 
aifected  by  the  defamatory  matter  ;1342  it  cannot  be  brought  in  a 
court  of  a  justice  of  the  peace.1343  It  may  be  brought  in  the 
Marine  Court  of  the  City  of  New  York,  if  the  damages  claimed 
do  not  exceed  $500.  And  in  cases  which  might  be  brought  in 
the  Marine  Court,  if  the  action  is  brought  in  any  other  court 
the  plaintiff  can  recover  only  Marine  Court  costs.1344  The  plain- 
tiff in  an  action  for  slander  or  libel  cannot  issue  an  attachment 
against  the  property  of  the  defendant,1345  but  the  defendant, 
whether  male  or  female,  may  be  arrested  and  held  to  bail  at 
the  commencement  of  the  action,  or  at  any  time  before  judg- 
ment therein ;  and  after  the  return  unsatisfied  of  an  execution 
against  the  property  of  the  defendant,  an  execution  may  issue 
against  his  person.1346  A  married  woman  sued  with  her  hus- 
band may  be  held  to  bail.1347  If  the  plaintiff  fails  in  the  action, 
a  judgment  against  him  for  the  costs  may,  after  an  execution 
against  his  property  has  been  returned  unsatisfied,  be  enforced 
by  an  execution  against  his  person.1348     The  plaintiff  may  be 

1342  Code  of  Pro.,  §  93 ;  see  post,  Parties.  In  some  cases  in  England,  the 
plaintiff  must  give  notice  of  action.  See  Norris  v.  Smith,  10  A.  <fc  E.  190 ; 
Beechey  v.  Sides,  9  B.  &  C.  806 ;  Lidster  v.  Borrow,  9A.dE,  654. 

1343  Code  of  Pro.,  §  54.  Actions  for  libel  and  slander  are  excepted  from  the 
jurisdiction  of  the  County  Courts  in  England,  9  and  19  Vict.,  ch.  95 ;  12  and  13 
Vict.,  ch.  101 ;  13  and  14  Vict.,  ch.  61  ;  15  and  16  Vict.,  ch.  54. 

1344  Laws  of  N.  Y.  1853,  p.  1165  ;  Murray  v.  Be  Gross,  3  Duer,  668. 

1345  And  so  in  So.  Carolina,  Sargent  v.  Helmbold,  Harper,  219. 

1348  Code  of  Pro.,  §§  179,  288;  see  Baker  v.  Swackhamer,  5  How.  Pra.  Rep. 
251;  Straus  v.  Schwarzwaelden,,  4  Bosw.  627;  Brooks  v.  McLellan,  1  Barb.  627; 
Davis  v.  Scott,  15  Abb.  Pra.  Rep.  127;  Pearson  v.  Picket,  1  McCord,  472; 
Newton  v.  Rowe,  8  Sc  N.  R.  26;  Defries  v.  Bavies.  3  DowL  Pra.  Cas.  629.  A 
defendant  in  custody  on  an  execution  for  damages  in  slander  or  libel,  is  not  dis- 
charged therefrom  by  the  English  Bankrupt  law ;  see  1  Doria  &  McCreas'  Law  of 
Bankruptcy,  349.     Query  as  to  the  United  States  Bankrupt  Law. 

1347  Schaus  v.  Putscher,  25  How.  Pra.  Rep.  436. 

134B  Kloppenburg  v.  Neefus,  4  Sandf.  655. 


364  PROCEEDINGS  IN  AN  ACTION. 

required  to  give  security  for  costs,  as  in  other  actions.1849     The 
summons  may  be  served  by  publication.1350 

§  268.  The  actions  of  slander  and  libel  are  of  the  kind 
known  as  i^ansitory.mi  The  place  of  trial  (the  venue)  should 
be  the  county  in  which  the  parties,  or  some  of  them,  reside  ;  or 
if  none  of  the  parties  reside  in  the  State,  then  in  any  county 
the  plaintiff  may  designate,1352  subject  in  every  case  to  the  power 
of  the  court  to  change  the  place  of  trial.1353  The  parties  to  the 
action,  the  pleadings,  and  the  evidence,  will  be  considered  here- 
after. 

§  269.  In  certain  cases  either  party  is  entitled  to  the  pro- 
duction and  inspection  of  documents  in  the  possession  or  con- 

1348  Court  refused  to  increase  amount  of  security  to  cover  expenses  of  foreign 
witnesses.  (Pizani  v.  Laivson,  5  Sc.  418.)  Actions  for  slander  or  libel  may  be 
consolidated;  see  an  instance,  Wliiteley  v.  Adams,  15  C.  B.  N.  S.  392;  10  Jurist, 
N.  S.  47.  The  court  refused  to  consolidate  actions  for  the  same  libel,  one  against 
the  publisher  and  the  other  against  the  editor  of  the  newspaper  in  which  the 
libel  was  published.  {Cooper  v.  Weed,  2  How.  Pra.  Rep.  40.)  Where  A  and  B 
having  recovered  in  separate  actions  against  different  parties  engaged  in  the 
publication  of  the  newspaper  in  which  the  libel  was  published,  commenced  other 
actions  against  the  same  parties,  each  suing  the  party  against  whom  the  other 
had  recovered,  the  court,  on  motion,  refused  to  stay  the  proceedings  in  the  second 
actions.     {Martin  v.  Kennedy  ;  Bunning  v.  Perry,  2  Bos.  &  Pul.  69.) 

1350  Code  of  Pro.,  §  135;    see  Waterhouse  v.  Hatfield,  9  Irish  Law  Rep.  38. 
1361  Hull  v.  Vreeland,  42  Barb.  543 ;   Owen  v.   McKean,  14  111.459;   Teagle  v. 
Deboy,  8  Blackf.  134;  and  see  Wickham  v.  Baker,  4  Blackf.  517. 

1352  Code  of  Pro.,  §  125.     Formerly  it   was   a  ground  for  arresting  or  setting 

aside  the  judgment  if  the  venue  was  laid  in  the  wrong  county.     This  was  altered 
by  the   statutes    16   and  17  Car.  2,  ch.  8;  4  Anne,  ch.  16;   Clerk  v.  James,  Cro. 

Eliz.  870 ;   Craft  v.  Boite,  1  Saund.  241. 

1363  Code  of  Pro.,  §  126.      As  to  changing  venue,  see    Phillips  v.  Chap/man,  5 

Dowl.  Pr.  Cas.  250 ;  Ryder  v.  Burke,  10  Ir.  Law  Rep.  476 ;  Robson  v.  Blackman, 

2  Dowl.  645 ;   Clements   v.  Newrombe,  1  Cr.  M.  &  R.  776 ;  3  Dowl.  Pr.  Cas.  425 ; 

Pybus  v.  Scudamore,  7  Sc.  124 ;  Hobart  v.  Wilkins,    1  Dowl.  460 ;    Wlieatcroft  v. 

Mouseley,  11  C.  B.  677 ;  20  Eng.  Law  and  Eq.  R.  296 ;  Pinckney  v.  Collins,  1  T. 

R.  571;     Clissold  v.    Clissold,   1  T.    R.  647;    Metcalfx.  Markham,  3  T.  R.  652 ; 

Barnes  v.  Holloway,  8  T.  R.  150;  Hitehon  v.    Best,    1    B.    &   P.    299;  Lucan  v. 

Cavendish,  10  Ir.   Law   Rep.  536;   Callagher  v.  Cavendish,  3  Ir.  Law  Rep.   375; 

Root  v.  King,  4  Cow.  403  ;    Shaftsbury's  case,  1  Vent.  364 ;   Greenslade  v.  Ross,  3 

Dowl.  Pra.  Cas.  697 ;   Tallent  v.  Morton,  1  M.  &  P.  188. 


PROCEEDINGS  IN  AN  ACTION.  365 

trol  of  his  adversary.1354  Where  in  an  action  for  a  libel  the 
plaintiff  moved  for  an  order  upon  the  defendant  to  deliver  to 
him  a  copy  of  a  printed  book  in  his,  defendant's,  possession,  in 
order  to  enable  him,  plaintiff,  to  prepare  his  complaint  in  the 
action, per  curiam:  Without  expressing  any  opinion  as  to  the 
propriety  of  compelling  a  defendant,  in  an  action  for  a  libel,  to 
deliver  to  the  plaintiff  a  copy  of  the  libel,  I  am  clearly  of  the 
opinion  that  this  motion  should  not  be  granted,  because:  1.  The 
affidavits  do  not  show  what  is  stated  in  the  book  of  which  the 
plaintiff  seeks  a  discovery,  and  therefore  the  court  cannot 
decide  whether  it  is  material  or  not.  2.  Because  the  affidavits 
do  not  specify  any  particular  information  desired,  so  that  the 
court  could  order  a  sworn  copy  to  be  delivered.  3.  Because 
the  plaintiff  is  not  entitled  to  the  whole  book,  but  only  to  the 
particular  article  on  which  his  action  is  founded.1355  Upon  an 
application  in  an  action  for  libel,  for  leave  to  examine  a  defend- 
ant before  service  of  any  complaint,  the  court  much  doubted 
the  propriety  of  exercising  the  power  of  the  court  to  enable  the 
plaintiff  to  obtain  facts  upon  which  to  frame  his  complaint.1356 
And  in  an  action  against  certain  individuals  named,  and  certain 
others  not  named  (except  by  fictitious  names),  for  a  libel  in  a 
newspaper  of  which  the  defendants  named,  with  the  others  not 
named,  were  alleged  to  be  the  proprietors,  the  plaintiff  alleged 
that  the  names  of  the  proprietors  were  unknown  to  him,  and 
that  it  was  pretended  that  the  newspaper  was  the  property  of  a 
corporation,  and  asked  for  an  inspection  of  the  books  of  such 
corporation  to  enable  him  to  ascertain  the  true  names  of  the 
proprietors  of  the  newspaper.     The  application  was  denied.1357 

§  270.  In  England  a  bill  of  discovery  is  allowed  in  certain 
cases  in  an  action  for  libel,1858  and  interrogatories  may  be  exhib- 

1864 Code  of  Pro.,  §  388  ;  2  Rev.  Stat,  of  N.  Y.  199,  Court  Rule  14. 
1360  lynch  v.  Henderson,  10  Abb.  Pra.  R.  345,  note. 
1366  Keeler  v.  Dusenbury,  1  Duer,  661. 
1357  Opdykc  v.  Marble,  44  Barb.  64. 

1368  As   to  a   bill   of  discovery  in  aid  of  an  action  for  libel,  see  Macauley  v. 
Shackell,  1  Bli.  N.  S.  96;  2  Sim.  <fe  St.  19;    Wilmot  v.  McCabc,  4  Sim.  263;  March 


366  PROCEEDINGS  IN  AN  ACTION. 

ited  to  ascertain  the  precise  words  used,1359  but  the  court  refused 
to  permit  a  plaintiff  to  exhibit  interrogatories  to  the  defendant, 
the  answers  to  which,  if  in  the  affirmative,  would  tend  to  show 
that  he  composed  or  published  the  libel,  and  would  therefore 
criminate  him.1360  In  an  action  for  imputing  to  the  plaintiff 
that  he  was  the  author  of  a  scandalous  letter,  which  the 
defendant  in  his  plea  justified  as  true,  the  court  allowed  the 
plaintiff  an  inspection  of  the  letter  by  certain  witnesses,  in  order 
that  he  might  be  prepared  to  negative  its  being  his  hand- 
writing.1361 

§  271.  In  one  case,1362  in  an  action  for  libel,  the  court 
ordered  the  defendant  to  produce  certain  documents  in  his  pos- 
session for  the  inspection  of  the  plaintiff.  This  was  disapproved 
of  in  a  subsequent  case,1363  where  an  application  for  an  order  to 
inspect  the  manuscript  of  articles  that  had  been  published  in  a 
newspaper  was  denied. 

§  272.  On  the  principle  that  before  a  party  utters  a  slander 
he  should  be  prepared  to  justify,  it  has  been  said  that  the  courts 
will  not  give  the  defendant  an  inspection  of  documents  in  the 
possession  of  the  plaintiff  to  enable  the  defendant  to  prepare  a 
plea  of  justification;  thus  where  A  charged  B  with  forging  an 
I  O  U,  and  B  sued  A  in  slander  for  uttering  such  charge,  the 
court  refused  the  application  of  the  defendant  for  an  inspection 
of  the  IOU,  although  he  alleged  that  the  I  O  U  was  in  the 
possession  of  the  plaintiff,  that  he  (defendant)  had  reason  to 
believe  it  was  in  reality  a  forgery,  and  that  he  could  not  safely 

v.  Davison,  9  Paige,  580;  Stat.  32  George  III,  ch.  60  ;  Stewart  v.  Nugent,  12  Legal 
Observer  (London),  210. 

1369  Atkinson  v.  Fosbrook,  1  Law  Rep.  628,  Q.  B.;   14  Law  Times  N.  S.  553. 

1360  Tapling  v.  Ward,  6  Hurl.  &  Nor.  749 ;  but  see  Baker  v.  Lane,  3  Hurl.  <fe 
Colt.  544;  34  Law  Jour.  N.  S.  57,  Ex. ;  10  Jurist,  N.  S.  117;  11  Law  Times,  N.  S. 
38,  as  explained  in  Beckford  v.  D'Arcy,  1  Law  Rep.  354,  Ex. ;  14  Law  Times,  N. 
S.  629. 

1361  Curtis  v.  Curtis,  3M.A  Sc.  819. 
13MPerroit  v.  Morris,  8  Irish  Jurist,  334. 

1363  Findlay  v.  Lindsay,  7  Irish  Com,  Law  Rep.  1 . 


PROCEEDINGS   IN  AN  ACTION.  367 

plead  without  inspecting  it.1364  Where  an  order  had  been  made 
in  an  action  of  libel  giving  the  defendant  leave,  under  14  and 
15  Yict.  ch.  99,  §  6,  to  inspect  the  books  of  the  plaintiiF,  a 
motion  by  the  defendant  to  extend  the  time  to  make  the  inspec- 
tion, was  deuied  on  the  ground  that  the  order  for  inspection 
ought  never  to  have  been  made,  and  per  curiam.  A  man  who 
publishes  a  libel  should  be  in  a  position  to  prove  it,  and  it  would 
be  a  monstrous  thing  if  a  man  could  publish  a  libel,  imputing 
insolvency  to  a  mercantile  house,  and  then  to  come  to  this  court 
and  ask  for  an  order  to  inspect  the  plaintiff's  books,  in  the  hope 
of  being  able  to  get  up  a  case.  If  the  defendant  is  a  share- 
holder, he  has  other  means  of  obtaining  an  inspection,  and  we 
can  only  regard  him  as  a  defendant  in  an  action  for  libel.1365 

§  273.  In  Massachusetts  and  in  Maine,  by  statutes,  a  bill  of 
particulars  of  the  language  which  the  plaintiff  intends  to  prove 
may  be  ordered.1366  These  are  cases  where  the  precise  words  al- 
leged to  have  been  published  were  not  set  forth  in  the  complaint. 
In  England  an  order  was  made  for  a  statement  of  the  occasions 
upon  which  the  words  were  published.1367 

§  274  If  the  defendant  does  not  answer,  he  admits  the 
allegations  of  the  complaint  and  the  truth  of  the  innuendoes.1368 
The  plaintiff  must  issue  a  writ  of  inquiry,  and  have  his 
damages  assessed  by  a  sheriff's  jury,  not  by  a  referee.1869    The 


l3M  Bay  v.  Tuckett,  1  Bail  Court  Rep.  203 ;  but  see  Browning  v.  Aylwin,  7  B. 
<fe  0.  204,  where  an  inspection  was  allowed. 

1366  Metro.  Saloon  Co.  v.  Hawkins,  4  Hurl.  &  Nor.  146 ;  1  F.  &  F.  413 ;  see, 
however,  Steadman  v.  Arden,  15  M.  &  W.  587. 

1366  Clark  v.  Munsell,  6  Mete.  373 ;  True  v.  Plumbey,  36  Maine  (1  Heath),  466. 

I3C7  Slator  v.  Slator,  8  Law  Times,  N.  S.  856 ;  and  see  Wicks  v.  Macnamara, 
36  Law  Jour.  419,  Ex. ;  Early  v.  Smith,  12  Irish  Com.  Law  Rep.,  p.  xxxv  of  Ap- 
pendix. 

1368  Code  of  Pro.,  §§  168,  246;  Tillotson  v.  Cheetham,  3  Johns.  56.  After  judg- 
ment by  default  it  is  too  late  to  object  to  the  venue.  ( Wickham  v.  Baker,  4 
Blackf.  517.) 

1369  Voorhies'  Code,  446  i,  9th  ed. ;  and  see  Schewer  v.  Klein,  18  La.  Ann.  303. 


368  PROCEEDINGS   IN  AN   ACTION. 

court  may  order  the  writ  of  inquiry  to  be  executed  before  a 
judge.1370  On  the  execution  of  the  writ  the  plaintiff  is  not 
required  to  give  any  evidence  of  publication.1371  The  defendant, 
on  the  execution  of  the  writ,  will  not  be  allowed  to  read  parts 
of  the  publication  not  set  forth  in  the  complaint,  in  order  to 
give  a  meaning  to  the  words  set  forth  in  the  complaint  different 
from  that  alleged  by  the  plaintiff; 1372  and  semble,  the  defendant 
will  not  be  allowed  to  give  evidence  of  the  truth  of  the  lan- 
guage complained  of.1373 

§  275.  The  trial  of  the  issues  in  an  action  for  slauder  or  libel 
must  be  by  jury,  unless  a  jury  trial  is  waived,  or  the  parties,  by 
consent,  try  the  issue  before  the  court  without  a  jury,  or  before 
a  referee,  or  submit  them  to  arbitration.1374  In  case  of  a  trial 
by  jury,  the  court  may  order  a  struck  jury,  but  will  not  do  so 


1370  Oasneau  v.  Bryant,  6  Duer,  668 ;  and  see  Dillaye  v.  Hart,  8  Abbott  Pra. 
Rep.  394;  Hays  v.  Berryman,  6  Bosw.  679. 

1371  Tripp  v.  Thomas,  3  B.  &  Cr.  427;  5  D.  &  R.  276 ;  1  Carr.  477.  In  this 
case  it  was  also  held,  that  although  the  plaintiff  gives  no  evidence,  the  jury  are 
not  limited  to  giving  nominal  damage.  It  has  been  held  that  after  assessment  of 
damages  on  a  writ  of  inquiry,  the  plaintiff  cannot,  without  leave  of  the  Court, 
enter  a  nolle  prosequi  as  to  one  count,  and  take  judgment  /or  the  others.  (Backus 
v.  Richardson,  5  Johns.  476.) 

™2TUlotson\.  Cheetham,  3  Johns.  56. 

1373  Le wis  v.  Few,  Anthon,  75.  Held  not  sufficient  ground  for  staying  a  writ  of 
inquiry  that  the  House  of  Commons  had  voted  the  publication  privileged. 
(Stockdale  v.  Hansard,  8  Dowl.  148.) 

1374  Code  of  Pro.,  §  253.  Instances  of  actions  for  slander  and  libel  being 
referred.  Bonner  v.  McPhail,  31  Barb.  106  ;  Rockweller  v.  Brown,  36  N.  Y.  207  ; 
Sanford  v.  Bennett,  24  N.  Y.  20 ;  arbitration,  see  Grosvenor  v.  Hunt,  1 1  How. 
Pra.  Rep.  355 ;  Grayson  v.  Meredith,  17  Ind.  357.  An  award  about  calling  a 
butcher  a  bankrupt  was  referred  to  a  trial  at  law  because  of  the  excessiveness  of 
the  damages  given  on  the  award.  (Cooper  v.  The  Butcher  of  Croydon.  3  Ch.  R,  76.) 
In  2  Vern.  R.  251,  it  is  said  there  was  aaother  reason  besides  the  excessive 
damages  for  setting  aside  the  award.  That  reason  was  the  relationship  of  the 
arbitrator  to  one  of  the  parties.  See  an  award  that  defendant  should  make  sub- 
mission and  acknowledge  himself  sorry  for  all  trespasses  and  words.  ( Cartwright 
v.  Gilbert,  2  Browl.  48.)  As  to  amount  of  costs,  where  an  action  of  slander  was 
referred,  and  plaintiff  recovered  less  than  forty  shillings  damages.  (Fream  v, 
Sergeant,  8  Law  Times,  N.  S.  467.) 


RIGHT  TO  BEGIN.  360 

in  trials  to  be  Lad  in  the  city  of  New  York.1375  The  court  may 
refuse  to  try  the  cause  if  the  trial  will  involve  an  attack  upon 
the  chastity  of  a  third  person  not  a  party  to  the  action.1376  In 
case  of  a  new  trial,  the  re-trial  may  be  before  the  judge  who 
presided  on  the  first  trial.1377 

§  276.  It  is  supposed  that  in  actions  for  slander  or  libel,  the 
plaintiff  has,  in  every  case,  the  right  to  begin.1378  The  right  to 
begin  is  so  far  within  the  discretion  of  the  court,  that  an  erro- 
neous ruling  in  respect  to  it  will  neither  entitle  to  a  new  trial 
nor  render  the  judgment  voidable  by  appeal.1379  But  in  Eng- 
land it  has  been  held  that  an  erroneous  ruling  as  to  the  right  to 
begin,  entitles  the  objecting  party  to  a  new  trial.1380  And  so  in 
Alabama.1381 

§277.  Counsel,  in  opening,  should  not  state  facts  which 
they  are  not  prepared  to  prove ;  but  a  disregard  of  this  rule 
will  not  entitle  the  opposite  party  to  disprove  a  state/nent  of 
counsel.1382  Nor  is  a  party  limited  in  his  proof  to  the  opening 
of    his  counsel.1383      Counsel,   in  summing  up,  should  confine 


1375  Genet  v.  Mitchell,  4  Johns  186;  Thomas  v.  Rumsey,  4  Johns.  482;  Thomas 
v.  Crosswell,  4  Johns.  491 ;  Nesmith  v.  Atlantic  Mut.  Ins.  Co.,  8  Abb.  Pra.  Rep. 
423. 

13'6  Loughead  v.  Bartholomew,  Wright,  90.  As  to  right  of  judge  to  refuse  to  try 
a  cause,  see  De  Costa  v.  Jones,  Cowp.  729  ;  Squires  v.  Whiskcn,  3  Camp.  140 ;  Ditchen 
v.  Goldsmith,  4  Camp.  152;  Brown  v.  Leeson,  2  H.  Black.  43  ;  Egerton  v.  Furz- 
man,  1  C.  &  P.  613 ;  Henken  v.  Guers,  2  Camp.  408. 

1377  Fry  v.  Bennett,  3  Bosw.  200;  28  N.  Y.  329. 

13 '"  Littlejohn  v.  Greeley,  13  Abb.  Pra.  R.  41.  See  Woody.  Pringle,  1  Mo.  &  Rob. 
277;  Sawyer  v.  Hopkins,  9  Shep.  268;  Huntington  v.  Conkey,  33  Barb.  218; 
Ayrault  v.  Chamberlain,  33  Barb.  233 ;  Carter  v.  Jones,  6  C.  <fc  P.  64 ;  1  M.  <fc 
Rob.  281  ;  Mercer  v  Wliall,  5  Q.  B.  462. 

1379  Fry  v.  Bennett,  3  Bosw.  200  ;  28  N.  Y.  329. 

u*  Ashley  v.  Bates,  15  M.  &  W.  589 ;  Booth  v.  Mdnes,  15  M.  <fe  W.  669 ;  4  D. 
&  L.  52  ;  15  Law  Jour.  354,  Ex. ;  Doe  v.  Brayne,  17  Law  Jour.  127,  C.  P. ;  Hink- 
man  v.  Firnie,  3  M.  &  W.  505;  but  dee  Brandford  v.  Freeman,  5  Ex.  734;  Bur- 
rell  v.  Nicholson,  1  M.  &  Rob.  304 ;  Bird  v.  Higginson,  2  A.  <fe  E.  160. 

13B1  Chamberlains.  Gaillard,  26  Ala.  504. 

lwa  buncombe  v.  Daniell,  8  C.  &  P.  223. 

1388  Fearing  v.  Bell,  5  Hill,  291. 
24 


370  PROCEEDINGS   IN  AN  ACTION. 

themselves  to  the  facts  proved ;  but  a  disregard  of  this  rule  is 
not  a  ground  for  a  new  trial.1384  The  summing  up  of  counsel 
may,  it  seems,  affect  the  damages.  Thus  in  an  action  for  libel 
brought  by  an  attorney,  the  defendant's  counsel  having  ridiculed 
the  profession  and  assailed  the  character  of  the  plaintiff,  Lord 
Chief  Justice  Cockburn  told  the  jury  that  if  they  thought  it 
was  a  libel,  and  directed  against  the  plaintiff,  "a  defence  of  that 
description  is  ten-fold,  if  not  an  hundred-fold,  an  aggravation  of 
any  libel  which  can  be  brought  against  a  man  for  any  departure 
from  the  propriety  of  his  profession,  *  *  *  a  most  grievous 
aggravation,  and  one  which  it  is  your  bounden  duty  to  take 
into  your  serious  consideration." 1385 

§  278.  Where  the  publication  is  denied,  the  libel  should 
not  be  read  to  the  jury  until  after  the  defendant's  counsel  has 
called  witnesses  to  prove  the  publication,  but  a  disregard  of  this 
rule  is  not  a  ground  for  a  new  trial.1386  As  a  general  rule  the 
defendant  is  entitled  to  have  read  on  the  trial  the  whole  publi- 
cation containing  the  alleged  libellous  matter.1387 

§  279.  Where  the  defences  are  a  general  denial  and  justifica- 
tion, the  plaintiff  may,  before  resting  his  case,  either  give  all 
his  evidence  to  defeat  the  justification,1388  or  content  himself  by 
proving  the  allegations  of  his  complaint  only,  in  which  case  he 
will  be  restricted  in  his  reply  to  such  evidence  only  as  goes 
exactly  to  answer  the  facts  proved  by  the  defence.1389  The  evi- 
dence is  usually  closed  with  the  plaintiff's  rebutting  testimony.1390 

i3«4  Fry  v  Bennett,  3  Bosw.  202;  28  N.  Y.  331. 

I3B6Noteto  G/roever  v.  Hoffman,  16  U.  C.  Q.  B.  Rep.  445. 

1386  Tayior  y.  State  of  Georgia,  4  Geo.  14. 

1887  Weaver  v.  Lloyd,  1  C.  &  P.  295  ;  Thornton  v.  Stephen,  2  M.  &  Rob.  45  ; 
Cooke  v.  Hughes,  Ry.  &  M.  112;  2  Greenl.  Ev.  §  423 ;  Rex  v.  Lambert,  2  Camp. 
398 ;  Rutherford  v.  Evans,  6  Bing.  451  ;  4  C.  &  P.  74. 

1388  Brown  v.  Murray,  Ry.  &  Mo.  254 ;  Ayrault  v.  Chamberlain,  33  Barb.  234  ; 
York  v.  Pease,  2  Gray,  282. 

1389  p{errep0int  v.  Sharpland,  1  Carr.  448. 
1890  Teagle  v.  Duboy,  8  Blackf.  134. 


WITHDRAWING  PLEA.  371 

It  is  discretionary  with  the  court  to  allow  additional  testimony 
on  the  part  of  either  party,  after  he  has  once  closed;1391  and 
where  there  is  a  plea  of  justification,  the  plaintiff  may,  before 
resting  his  case,  give  evidence  of  express  malice.1392 

§  280.  The  plaintiff  may,  on  the  trial,  abandon  one  or  more 
of  the  causes  of  action  he  has  alleged  in  his  complaint,1393  or 
where  the  alleged  defamatory  matter  is  divisible,  may  withdraw 
a  portion  of  the  matter  set  forth  in  the  complaint.1394  A 
defendant  was  not  allowed  to  withdraw  a  plea  of  justification,1395 
but  a  refusal  to  allow  such  a  withdrawal  was  in  one  case  held 
error.1396  Where  the  defendant  had  pleaded  the  general  issue 
and  a  plea  of  apology,  leave  to  withdraw  the  plea  of  apology 
was  denied,  the  plaintiff  swearing  he  would  be  prejudiced.1397 
It  was  held  that  a  written  statement  made  by  the  defendant,  in 
which  he  disclaimed  any  evil  intentions  toward  plaintiff,  could 
not  be  given  in  evidence  on  the  trial,  and  if  allowed  by  the 
plaintiff  to  be  given  in  evidence,  could  not  be  sent  out  with 
the  jury.1398  "Where  the  plaintiff,  on  the  trial,  abandons  a  part 
of  the  defamatory  matter,  the  part  abandoned  may  be  referred 
to,  to  show  the  meaning  of  the  part  retained.1399 

§  281.  The  jury  are  to  determine,  as  a  question  of  fact,  the 
customary  meaning  of  a  word,1400  and  the  meaning  of  doubtful 

1391  Wilborn  v.  Odell,  29  111.  456. 

1391  Fry  v.  Bennett,  3  Bosw.  202 ;  but  see  Winter  v.  Donovan,  8  Gill,  310. 

1393  Kirkaldy  v.  Paige,  17  Verm.  256;  Stow  v.  Converse,  4  Conn.  1*7;   Gould  v. 
Weed,  12  Wend.  12. 

1394  Healer  v.  Degant,  3  Ind.  501 ;   Genet  v.  Mitchell,  7  Johns.  120. 

1395  Clinton  v.  Mitchell,  3  Johns.  144 ;  Lent  v.  Butler,  3   Cow.  370  ;  Lee  v.  Rob- 
ertson, 1  Stew.  138. 

1396  Fitzgerald  v.  Ferguson,  25  111.  138.    In  Pennsylvania  the  withdrawal  of  the 
plea  is  within  the  discretion  of  the  court.     (Bush  v.  Cavanagh,  2  Barr,  187.) 

1397  Sullivan  v.  Lenihan,  7  Irish  Law  Rep.  463. 
,39B  Hamilton  v.  Glenn,  1  Penn.  St.  Rep.  340. 

1399  Genet  v.  Mitchell,  7  Johns.  120. 

1400  Law  v.  Cross,  1  Black  U.  S.  Rep.  583.  See  Edsallv.  Brooks,  3  Robertson,  284  ; 
Barnett  v.  Allen,  1  Fost.  &  Fin.  125 ;    Wachter  v.  Quenzer,  29  N.  Y.  547. 


372  PROCEEDINGS  IN  AN  ACTION. 

words,1401  and  whether  the  language  was  or  was  not  ironical.1403 
"  Where  words  are  capable  of  two  constructions,  in  what  sense 
they  were  meant  is  a  question  of  fact  to  be  decided  by  the 
jury."  1403  Thus  if  in  one  sense  the  language  imputes  a  crime, 
and  in  the  other  sense  does  not,  the  jury  are  to  say  in  which 
sense  the  language  is  to  be  understood.1404  And  where  A.  said 
to  B.,  "You  have  killed  one  negro  and  nearly  killed  another," 
held  that  the  jury  were  to  say  whether  the  words  were  used  in 
a  defamatory  sense  or  not ; 1405  so  where  the  language  was,  "  You 
are  a  thief.  You  stole  hoop-poles  and  saw-logs  from  D.  and  M.'s 
land,"  held  that  it  was  properly  left  to  the  jury  to  decide  if  the 
charge  was  taking  timber  or  hoop-poles  already  cut — which  was 
a  felony — or  with  cutting  down  and  carrying  away  timber  to 
make  hoop-poles,  which  was  a  trespass.1406  Where  words 
apparently  charging  a  crime  are  published,  it  is  proper  to 
instruct  the  jury  that  the  words  are  actionable  if  uttered  with 
intent  to  charge  the  crime.1407 

§  282.  Where  the  plaintiff,  in  an  action  for  libel,  had  set 
out  in  his  declaration  an  article  published  by  the  defendant  in 
a  newspaper,  which  the  plaintiff  claimed  to  be  libellous,  and, 
on  the  trial,  the  defendant  selected  a  certain  portion  of  the 
words  of  such  article,  which  he  claimed  were  proved  to  be 

1401  Hays  v.  Brierly,  4  Watts,  392. 

umReg.  v.  Browne,  Holt,  425;  11  Mod.  86;  Andrews  v.  Woodmansee,  15  Wend. 
232 ;  Boydell  v.  Jones,  4  M.  &  W.  446 ;  7  Dowl.  Pra.  Cas.  210. 

1403 1  Stark.  Slan.  60  ;  Van  Vechten  v.  Hopkins,  5  Johns.  221 ;  Dexter  v.  Taber, 
12  Id.  240;  McKinleyv.  Bob,  20  Id.  356;  Gorham  v.  Ives,  2  Wend.  534;  Gibson 
v.  Williams,  4  Wend.  320  ;  Blaisdell  v.  Baymond,  14  How.  Pra.  Rep.  265  ;  Bennett 
v.  Williamson,  4  Sandf.  60. 

1404  Cregier  v.  Bunton,  2  Rich.  395  ;  11  Humph.  507  ;  Ex  parte  Bailey,  2  Cow. 
479;  and  see  1  Amer.  Lead.  Cas.  153  ;  Davis  v.  Johnston,  2  Bailey,  579;  Welsh  v. 
Eakle,  7  J.  J.  Marsh.  424 ;  Lucas  v.  Nichols,  7  Jones'  Law  (N.  C.)  32 ;  Snyder  v. 
Andrews,  6  Barb.  47 ;  Thompson  v.  Grimes,  5  Ind.  (Porter)  385 ;  Smith  v.  Miles, 
15  Verm.  245  ;  Usher  v.  Severance,  2  App.  9 ;  Turrill  v.  Dolloway,  26  Wend. 
383  ;  Jones  v.  Bivers,  3  Brevard,  95. 

1406  Hays  v.  Hays,  1  Humph.  402  ;   Chalmers  v.  Payne,  2  C.  M.  &  R.  156. 

1406  Dexter  v.  Taber,  12  Johns.  239  ;  and  Slockdaley,  Tarte,  4  Adol.  &  El.  1016  ; 
Tuson  v.  Evans,  3  Perr.  &  D.  396. 

1407  St.  Martin  v.  Desnoyer,  1  Min.  156. 


PROVINCE  OF  COURT  AND  JURY.  373 

true,  and  if  otherwise,  were  not  libellous,  and  so  he  prayed  the 
court  to  instruct  the  jury  ;  the  court,  after  denning  a  libel,  and 
pointing  out  what  would  constitute  one,  instructed  the  jury 
that  they  might  consider  the  whole  libellous  matter  in  connec- 
tion with  the  circumstances  proved  or  admitted,  and  say  what 
was  the  meaning  of  the  writing — what  it  imputed  to  the  plain- 
tiff, as  to  motives,  objects,  principles,  acts,  and  character ;  and 
if  they  were  such  as  to  make  the  writing  libellous  according  to 
the  definition  previously  given,  and  it  was  false  and  malicious, 
they  would  find  the  matter  libellous,  and  sufficient  to  sustain 
the  action ;  it  was  held,  that  this  direction  was  unexception- 
able.1408 A  banker,  remitting  the  proceeds  of  a  note  sent  to 
him  for  collection,  appended  to  his  letter  the  words  "  Confiden- 
tial. Had  to  hold  over  for  a  few  days  for  the  accommodation 
of  L.  &  H.,"  who  were  the  makers.  Held  that  these  words  have 
not  necessarily  an  injurious  meaning,  and  that  their  interpreta- 
tion was  a  matter  for  the  jury.1409  Where  the  libel  was  copied 
by  the  defendants  from  another  paper,  with  the  word  "  fudge  " 
added  thereto,  held  that  it  was  for  the  jury  to  say  with  what 
motive  the  publication  was  made,  and  whether  that  word  was 
only  to  give  a  color  at  a  future  day.1410 

§  283.  Where,  at  the  time  of  speaking  defamatory  words, 
the  defendant  qualifies  them  by  other  words,  the  jury  are  to 
determine  from  all  that  took  place  at  the  time,  whether  a  crime 
was  or  was  not  charged  ;  but  to  justify  the  application  of  this 
principle  the  qualification  or  explanation  must  not  only  accom- 
pany the  words,  but  must  be  sufficiently  explicit  to  enable 
those  who  hear  the  same,  and  who  are  presumed  to  acquire  all 
their  knowledge  of  the  transaction  from  what  was  said  at  the 
time,  reasonably  to  understand  to  what  the  words  refer,  and 
that  the  meaning  which  the  words  standing  alone  would  con- 
vey was  not  the  meaning  intended.1411 

1408  Graves  v.  Waller,  19  Conn.  90. 

1409  Lewis  v.  Chapman,  16  N.  Y.  369 ;  and  see  Sitnmons  v.  Morse,  6  Jones'  Law 
(N.  C),  6. 

1410  Hunt  v.  Algar,  6  C.  &  P.  245. 

1411  Van  Akin  v.  Caler,  48  Barb.  60. 


374  PROCEEDINGS  IN  AN   ACTION. 

§  284.  It  is  for  the  judge  to  decide  whether  the  language  is 
capable  of  the  meaning  ascribed  to  it  by  the  innuendo,  and  for 
the  jury  to  decide  whether  such  meaning  is  truly  ascribed.1412 
Thus  where  the  defamatory  matter  was  concerning  K.,  which 
it  was  alleged  meant  King  George  the  Third,  held  that  the 
jury  were  to  decide  if  such  was  its  meaning.1413  The  judge 
may  give  his  opinion  that  the  publication  complained  of  con- 
veys a  certain  meaning,  and  that  therefore  it  is  libellous,  but 
still  it  is  for  the  jury  to  say  whether  or  not  the  publication 
does  convey  the  meaning  which  the  judge  ascribes  to  it.1414 
"Where  the  words  were  that  the  plaintiff  "  will  lie,  cheat,  steal, 
and  swear,"  it  was  held  that  the  court  might,  in  answer  to  a 
broad  request  of  the  defendant's  counsel  to  charge  that  the  evi- 
dence did  not  support  the  declaration,  say  to  the  jury  that 
these  words  might  import  that  the  plaintiff  stole.1415  The  plain- 
tiff, D.,  who  had  worked  for  F.  in  making  pill  boxes  by  a  ma- 
chine owned  and  kept  secret  by  F.,  left  F.,  and  set  up  a  ma- 
chine for  making  similar  boxes  on  his  own  account.  F.,  when 
speaking  of  D.'s  said  machine,  said,  "  D.  stole  my  patterns  to 
get  up  his  castings  by."  Held,  that  it  was  for  the  jury,  and 
not  for  the  court,  to  decide  whether  F.  intended,  by  these 
words,  to  charge  D.  with  the  crime  of  larceny.1416  The  alleged 
libel  stated  that  plaintiff  had,  under  certain  specified  circum- 
stances, been  surety  for  another,  and  then  asked  the  question 
why  he  had  become  such  surely,  and  answered  by  saying : 
There  could  be  but  one  answer — he  was  hired  for  the  occasion. 
It  was  left  to  jury  to  say  if  this  was  a  fair  comment,  and  if  so 
to  find  for  defendant.  The  jury  found  for  defendant ;  and  on 
motion  for  a  new  trial,  the  court,  although  of  opinion  that  the 

1412  Blagg  v.  Start,  10  Q.  B.  899 ;  16  Law  Jour.  39,  Q.  B. ;  11  Jur.  101 ;  Coo- 
per v.  Greeley,  1  Demo,  361;  Vanderlip  v.  Roe,  23  Penn.  St.  R.  82;  Barger  v. 
Barger,  18  Penn.  St.  R.  489;  Hemmings  v.  Gasson,  1  Ell.  B.  &  E.  346 ;  Justice  v. 
Kir/in,  17  Ind.  588. 

1413  Hex  v.  Wood/all,  5  Burr.  2661. 

1414  Empson  v.  Fair  ford,  W.  W.  &  D.  10 ;   1  Jurist,  20. 
1416  Dottarer  v.  Bushey,  16  Penn.  St.  R.  204. 

1416  Bunnell  v.  Fiske,  11  Mete.  551. 


PROVINCE  OF  COURT  AND  JURY.  375 

charge  of  being  hired  was  not  a  just  inference  from  the  facts 
stated,  held  that  the  question  had  been  correctly  submitted  to 
the  jury,  and  refused  to  disturb  the  verdict.1417  Where  the 
charge  was  "I  have  a  suspicion  that  you  have  robbed  my 
house,"  innuendo  that  plaintiff  had  stolen  certain  goods  of  the 
defendant,  held  that  it  was  properly  left  to  the  jury  to  say 
whether  the  defendant  meant  to  impute  an  absolute  charge  of 
felony,  or  only  a  suspicion  of  felony.1418  In  an  action  of  slan- 
der, the  words  laid  did  not,  in  express  terms,  charge  the  crime, 
which,  by  innuendo,  it  was  stated  the  defendant  meant  to  im- 
pute to  the  plaintiff,  and  there  was  no  inducement  showing  of 
what  the  words  were  spoken  ;  the  circuit  judge  charged,  that 
the  declaration  would  suffice  if  the  jury  believed  that  the  words 
would  well  carry  the  meaning  that  had  been  ascribed  to  them. 
Held,  that  such  charge  was  proper,  and  a  verdict  for  the  plain- 
tiff was  sustained.1419 

§  285.  "Whether  the  facts  charged  in  the  publication  are 
true,  is  a  question  for  the  jury.1420  Where  the  charge  was  that 
plaintiff  had  traitorously  betrayed  the  secrets  of  his  govern- 
ment, it  was  held  to  be  a  question  for  the  jury  to  say  if  he  had 
traitorously  betrayed  the  secrets  of  his  government.1421  And 
where  the  charge  was  that  the  plaintiff  was  a  great  defaulter, 
and  the  proof  was  that  he  was  a  defaulter,  held  that  it  was  for 
the  jury  to  say  whether  he  was  a  great  defaulter.1422  And  leav- 
ing it  to  the  jury  whether  or  not  the  defendant  had  made  a 
true  statement  of  a  judicial  proceeding,  was  held  to  be 
proper.1423 

§  286.  It  is  the  exclusive  province  of  the  court  to  deter- 
mine the  construction  of  the  language  published,  and  to  deter- 

1417  Cooper  v.  Lawson,  8  Adol.  &  El.  746. 

141fi  Tozer  v.  Mashford,  4  Eng.  Law  &  Eq.  R.  451 ;    6  Ex.  539;  20  Law  Jour. 
Rep.  N.  S.  224,  Ex. 

1418  Marshall  v.  Gnnter,  6  Rich.  419. 

1450  Thomas  v.  Crosswell,  7  Johns.  264:    Van  Vechten  v.  Hopkins,  5  Johns.  211. 

1421  Genet  v.  Mitchell,  7  Johns.  90. 

1422  Warrnan  v.  Nine,  1  Jurist,  820. 

1423  Huff  v.  Bennett,  4  Sandf.  120. 


376  PROCEEDINGS  IN  AN  ACTION. 

mine  whether  or  not  upon  its  face  it  is  actionable  j^?1  se,im  and 
whether  or  not  the  language  on  its  face  is  concerning  the  plain- 
tiff,1425 or  concerning  him  in  his  professional  character.1426  But 
on  not  guilty  pleaded  whether  the  defamatory  matter  was  pub- 
lished concerning  the  plaintiff,  or  whether  by  the  person  men- 
tioned the  plaintiff  was  intended,  is  a  question  of  fact  for  the 
jury.1427  Where  the  declaration  alleged  the  publication  of  a 
certain  "  libel  concerning  the  plaintiff,"  but  contained  no  innu- 
endo, colloquium,  or  inducement  to  connect  the  publication 
with  the  plaintiff,  and  no  evidence  but  the  publication  itself 
was  offered  to  connect  him  therewith,  it  was  held  to  be  a 
question  for  the  court,  as  a  question  of  construction,  to  deter- 
mine whether  or  not  the  publication  referred  to  the  plaintiff.1428 
Where  no  extrinsic  facts  are  offered  in  evidence,  or  if  the  lan- 
guage is  ambiguous,  the  question  of  libel  or  no  libel  is  in  a 
civil  action  a  question  of  law,1429  and  as  neither  the  statute  of  32 
George  the  Third,  enabling  the  jury  to  give  a  general  verdict 
in  an  action  for  libel,  nor  the  similar  provision  in  the  Revised  Stat- 
utes of  New  York,  apply  to  civil  actions,1430  the  judge  may  charge 
the  jury,  whether  or  not,  as  a  question  of  law,  a  publication  is 
libellous  on  its  face,1431  and  it  is  the  duty  of  the  jury  to  follow  the 
instructions  of  the  judge.1432     It  is  the  practice  for  the  judge 

1424  Reeves  v.  Templar,  2  Jurist,  18*? ;  Matthews  v.  Beach,  5  Sandf.  256;  Green 
v.  Telfair,  20  Barb.  11 ;  Fry  v.  Bennett,  -5  Sandf.  54  ;  Haight  v.  Cornell,  15  Conn. 
f4;  Mizv.  Woodward,  12  Conn.  262;  Thompson  v.  Grimes,  5  Ind.  385;  McKinley 
V.  Robb,  20  Johns.  351 ;  Archbold  v.  Sweet,  5  C.  &  P.  219  ;  1  Mo.  &  Rob.  162. 

i425  Barrows  v.  Bell,  7  Gray  (Mass.)  251. 

1426  Tomlinson  v.  Britthbank,  1  Har.  &.  W.  573. 

1427  Van  Vechten  v.  Hopkins,  5  Johns.  211;  Green  v.  Telfair,  20  Barb.  11; 
Godson  v.  Home,  1  Brod.  &  Bing.  7. 

1428  Barrows  v.  Bell,  7  Gray  (Mass.)  301. 

1429  Snyder  v.  Andrews,  6  Barb.  43. 

1430  Hunt  v.  Bennett,  19  N.  Y.  173  ;  Levi  v.  Milne,  4  Bing.  195;  Snyder  v.  An. 
drews,  6  Barb.  55 ;  Dollaway  v.  Turrell,  26  Wend.  399. 

1431  Darby  v.  Ouseley,  36  Eng.  Law.  <fe  Eq.  R.  518 ;  Wagaman  v.  Byers,  17  Md. 
183  ;  Hunt  v.  Bennett,  19  N.  Y.  173. 

1432  Hakewellv.  Ingram,  2  Com.  Law  Rep.  1397 ;  28  Eng.  Law  &  Eq.  R.  413; 
The  State  v.  Jeandell,  32  Penn.  St.  Rep.  475;  and  see  Duffy  v.  The  People,  26  N. 
Y.  588 ;  Rex  v.  Burdett,  4  B.  &  Aid.  131 ;  2  Bennett  &  Hurd  Lead.  Cr.  Cas.  388 ; 
The  State  v.  Croteau,  23  Verm.  14 ;   U.  S.  v.  Morris,  1  Curtis,  53 ;    Baylis  v.  Law- 


PROVINCE  OF  COURT  AND  JURY.  377 

first  to  give  a  legal  definition  of  libel,  and  then  to  leave  it  to 
the  jury  to  say  whether  the  facts  necessary  to  constitute  that  of- 
fence, have  been  proved  to  their  satisfaction.1433  The  judge  may 
state  under  what  circumstances  language  in  itself  actionable 
may  be  spoken  with  impunity,  and  by  way  of  illustration  put 
a  case  differing  in  some  respects  from  that  before  the  court.1434 
He  is  bound,  upon  a  proper  motion,  to  rule  whether  or  not  the 
declaration  sets  forth  a  cause  of  action.1435  But  in  charging 
the  jury,  the  judge  is  not  bound  to  give  his  opinion  as  to  the 
nature  of  the  publication  as  a  matter  of  law.1436  And  where 
the  judge  charged,  "  I  find  a  difficulty  in  saying  whether  it 
[the  publication]  is  a  libel  or  not.  Gentlemen,  can  you  assist 
me  ?  "  a  motion  for  a  new  trial  on  the  ground  of  misdirection 
was  denied.1437  But  it  is  no  misdirection  that  the  judge,  in  ad- 
dition to  leaving  the  proper  questions  to  the  jury,  stated  his 
own  opinion  as  to  the  libellous  nature  of  the  publication.1438 
Although  the  judge  is  to  leave  it  to  the  jury  whether,  under 
the  circumstances,  the  publication  is  a  libel,  on  the  general 
issue  guilty  or  not  guilty,  yet  if  they  find  a  verdict  for  the  de- 
fendant on  that  issue,  in  a  case  in  which  no  question  is  made 
as  to  the  fact  of  publication,  nor  as  to  its  application  to  the 
plaintiff,  the  court  will  set  aside  the  verdict.1439     And  where 

rence,  11  Adol.  &  El.  925  ;  Rex  v.  Dean  of  St.  Asaph,  21  How.  St.  Tr.  84*7 ;  3  T. 
R.  428,  note;  Sixth  Rep.  of  Crim.  Law  Comm'rs,  A.D.  1841 ;  Forsyth's  Hist,  of 
Trial  by  Jury,  268 ;  2  Camp.  Ch.  Justices,  4*78  ;  3  Id.  56 ;  Rex  v.  Miller,  20  How. 
St.  Tr.  892;  Rex  v.  Wood/all,  5  Burr.  2661;  Shattuck  v.  Allen,  4  Gray,  541  ; 
Com'wealth  v.  Anthes,  5  Gray,  185  ;  Com' wealth  v.  Porter,  10  Mete.  263  ;  Goodrich 
v.  Davis,  11  Mete.  473 ;  Com'wealth  v.  Abbott,  13  Mete.  120 ;  Pearce  v.  The  State, 
13  N.  Hamp.  536;   The  People  v.  Crosswell,  3  Johns.  Cas.  33V. 

1433  Parmiter  v.  Coupland,  6  M.  &  W.  105. 

1431  Taylor  v.  Robinson,  29  Maine,  323. 

1436  Shattuck  y.  Allen,  4  Gray  (Mass.)  540 ;  Matthews  v.  Beach,  5  Sandf.  256. 

1436  Parmiter  v.  Coupland,  6  M.  &  W.  105  ;  Snyder  v.  Andrews,  6  Barb.  43. 

1437  Baylis  v.  Lawrence,  3  Perr.  &  D.  526. 

1438  Darby  v.  Ouseley,  36  Eng.  Law  &  Eq.  R.  518;  Snyder  v.  Andrews,  6  Barb. 
55  ;  and  see  Empson  v.  Fairford,  W.  W.  &  D.  10  ;  1  Jurist,  20. 

1439  Hakewell  v.  Ingram,  28  Eng.  Law  &  Eq.  R.  413 ;  2  Com.  Law  Rep.  139*7  ; 
and  see  Levi  v.  Milne,  4  Bing.  195  ;  Long  v.  Eakle,  4  Md.  454;  Usher  v.  Sever- 
ance, 20  Maine,  9 ;   Goodrich  v.  Davis,  1 1  Mete.  4*74. 


378  PROCEEDINGS  IN  AN  ACTION 

the  action  was  for  calling  the  plaintiff  a  thief,  and  the  defence 
was  that  the  defendant  so  explained  the  words  that  the  charge 
did  not  amount  to  an  imputation  of  felony,  the  court  being  of 
opinion  that  the  defence  failed,  charged  the  jury  that  the  plain- 
tiff was  entitled  to  a  verdict,  and  that  the  only  question  for 
them  to  determine  was  the  amount  of  damages.  The  defend- 
ant excepted  to  this  charge,  and  on  appeal  it  was  held  to  be 
proper.1440 

§  287.  Where  the  circumstances  of  the  publication  are  con- 
troverted or  uncertain,  a  case  is  presented  in  which  the  court  is 
to  instruct  the  jury  what  condition  of  circumstances  would  ren- 
der the  publication  privileged,  and  then  leave  it  to  the  jury  to 
determine  the  character  of  the  publication,  and  give  a  verdict 
accordingly.  For  the  jury  cannot  decide  whether  a  libel  was 
published  on  a  justifiable  occasion,  without  being  told  by  the 
court  what  facts  would  constitute  such  an  occasion.1441  The 
uncertainty  as  to  the  facts  may  consist  either  in  the  happening 
or  not  happening  of  certain  events,  oi*in  the  question  whether 
or  not  the  language  exceeded  the  privileged  limits. 

§  288.  The  facts  being  incontroverted,  the  court  is  to  de- 
termine whether  or  not  the  publication  is  privileged.1442  If  the 
court  decides  that  the  publication  is  absolutely  privileged,  that  of 
course  determines  the  action  ;  if  the  court  decides  the  publica- 
tion is  conditionally  privileged,  then  it  is  a  matter  of  law  for 
the  court  to  determine  whether  there  is  any  intrinsic  or  extrin- 
sic evidence  of  malice.  If  the  court  decides  this  question  in  the 
negative,  it  directs  a  nonsuit  or  a  verdict  for  the  defendant, 
without  reference  to  the  jury.1443  But  if  the  court  decides  there 
is  any  evidence,  either  in  the  language  of  the  publication  itself 

1440  Van  Akin  v.  C'aler,  48  Barb.  58. 

1441  Duncan  v.  Broivn,  15  B.  Monr.  186. 

1442  Darby  v.  Ousley,  36  Eng.  Law  &  Eq.  R.  518;  Wenman  v.  Ash,  13  C.  B. 
836. 

1443  Cooke  v.  Wildes,  5  El.  &  Bl.  328 ;  Somerville  v.  Hawkins,  10  C.  B.  583  ; 
Taylor  v.  Hawkins,  16  Q.  B.  308;  Harris  v.  Thompson,  13  C.  B.  333;  Wenman  v. 
Ash,  id.  836;  Fry  v.  Bennett,  5  Sandf.  54;  Jarvis  v.  Hathaway,  3  Johns.  180. 


PROVINCE  OF  COURT  AND  JURY.  379 

[intrinsic  evidence],  or  in  the  circumstances  of  its  publication, 
from  which  a  want  of  good  faith  or  a  bad  intent  [malice]  on 
the  part  of  the  publisher  may  be  inferred,  it  then  becomes  the 
duty  of  the  court  to  submit  to  the  jury,  with  appropriate  in- 
structions, and  as  a  question  of  fact  for  their  determination, 
whether  in  making  the  publication  the  publisher  acted  in  good 
faith  or  otherwise ; 1444  for  the  question  of  malice  in  such  a  case 
is  always  a  question  of  fact  to  be  determined  by  the  jury.1445 
Thus  where  the  defendant  had  charged  and  caused  the  plaintiff 
to  be  searched  for  a  brooch  missing,  but  afterwards  found  in 
the  defendant's  possession,  held  to  be  a  question  for  the  jury 
whether  the  charge  was  made  bond  fide,  and  that  the  circum- 
stances and  occasion  of  making  it  should  be  left  to  their  consid- 
eration;1446 and  to  entitle  a  plaintiff  "to  have  the  question  of 
malice  submitted  to  the  jury,  it  is  not  necessary  that  the  evi- 
dence should  be  such  as  necessarily  leads  to  the  conclusion 
that  malice  existed,  or  that  it  should  be  inconsistent  with  the 
non-existence  of  malice,  but  it  is  necessary  that  the  evidence 
should  raise  a  probability  of  malice,  and  be  more  consistent 
with  its  existence  than  with  its  non-existence ; 1447  and  where 
the  only  evidence  of  malice  was  claimed  to  be  on  the  face  of 
the  publication,  held  that  it  ought  to  have  been  left  to  the  jury 
to  determine  whether  there  was  any  malice.1448  But  where  the 
libel  purported  to  be  the  report  of  a  proceeding  in  the  insolvent 
court,  and  imputed  to  the  insolvent's  landlord  (the  plaintiff) 
that  he  colluded  with  the  insolvent  in  putting  in  a  fictitious 
distress ;  held,  that  the  judge  ought  not  to  have  left  it  as  a 
question  to  the  jury  whether  the  defendant  intended  to  injure 

1444  Lancey  v.  Bryant,  30  Maine  (17  Shep.),  466  ;  Powers  v.  Smith,  5  B.  &  A. 
860;  Abrams  v.  Smith,  8  Blackf.  95. 

1445  White  v.  Nicholls,  3  How.  U.  S.  Rep.  266 ;  Blackburn  v.  Blackburn,  4  Bing. 
395;  Robinson  v.  May,  2  J.  P.  Smith,  3 ;  Bodwell  v.  Osgood,  3  Pick.  379;  Tob- 
goodY.  Spyring,  1  Cr.  M.  &  R.  181;  Bromage  Y.'Prosser,  6  D.  &  R.  296;  Haight 
y.  Cornell,  15  Conn.  74;  Gardner  y.  Slade,  13  Ad.  &  Ell.  N.  S.  796;  PattisonY. 
Jones,  8  B.  &  C.  578. 

1446  Padmore  v.  Lawrence,  3  Perr.  <fe  D.  209. 

144'  Somerville  v.  Hawkins,  10  C.  B.  583  ;  and  see  Taylor  v.  Hawkins,  16  Q.  B. 
308;  Harris  v.  Thompson,  13  C.  B.  333";    Wenman  v.  Ash,  13  C.  B.  836. 

1448  Gilpin  y.  Fo-wler,  26  Eng.  Law  &  Eq.  R.  386;  9  Ex.  615;  18  Jur.  292. 


380  PROCEEDINGS  IN  AN  ACTION. 

the  plaintiff,  but  that  if  he  thought  the  tendency  of  the  publi- 
cation injurious  to  the  plaintiff,  he  ought  to  have  told  them  it 
was  actionable,  and  the  plaintiff  entitled  to  a  verdict.1449 

§  289.  The  amount  of  damages  is  to  be  determined  by  the 
jury,  but  the  court  should  instruct  them  as  to  the  rules  by  which 
they  should  be  governed  in  fixing  the  amount.1450  A  general 
instruction  to  find  such  damages  as  under  all  the  circumstances 
they  thought  right,  was  held  to  be  improper.1451  It  was  held  no 
ground  for  exception  that  the  judge  advised  the  jury  to  give 
only  nominal  damages.1452  A  charge  that  compensatory  dam- 
ages are  to  be  given  where  the  publication  is  without  malice, 
and  that  compensatory  damages  are  such  as  will  repay  the  costs 
and  trouble  of  the  suit  and  of  disproving  the  defendant's  alle- 
gations, was  held  right,1453  although  it  has  been  held  erroneous 
to  charge  the  jury  to  take  into  consideration  the  expense  to 
which  the  plaintiff  has  been  put  by  being  compelled  to  come 
into  court  to  vindicate  his  character.1454  It  is  usual  to  tell  the 
jury  that  they  are  not  to  consider  the  effect  of  the  verdict  upon 
the  costs ;  yet  it  has  been  held  in  one  case  that  if  the  jury  ask 
what  amount  of  damages  will  carry  costs,  there  is  no  reason 
why  the  judge  should  not  tell  them.1455  In  an  action  of  slander 
for  words  imputing  unchastity  to  the  plaintiff,  the  jury  were 
instructed  that  the  rule  with  respect  to  damages  was,  to  give 
such  as  were  commensurate  with  the  injury  sustained  by  the 
acts  charged  and  proved  against  the  defendants ;   that  if  the 

1449  Haire  v.  Wilson,  9B.it  Cr.  643. 

1450  True  v.  Plumley,  36  Maine,  466. 

1461  Duncan  v.  Brown,  15  B.  Monr.  186. 

1462  Matthews  v.  Beach,  5  Sandf.  256.  Where  the  judge  recommended  the  jury 
to  give  nominal  damages,  but  the  jury  gave  £5  damages,  the  court  refused  to  set 
the  verdict  aside.  (Chilvers  v.  Greaves,  5  M.  <fc  G.  f>1S.)  The  right  of  the  court 
to  direct  a  verdict  for  nominal  damages  doubted.  {Strong  v.  Kean,  13  Irish  Law 
Rep.  93.) 

1453  Armstrong  v.  Pierson,  8  Clarke  (Iowa),  29. 

1454  Hicks  v.  Foster,  13  Barb.  663. 

1455  Kelmore  v.  Abdoolah,  27  Law  Jour.  Rep.  307,  Ex.  Costs  cannot  be  allowed 
as  damages.  (Shay  v.  Tuolumne  Water  Co.,  6  Cal.  286.)  The  effect  of  the  verdict 
upon  the  costs  is  to  be  laid  entirely  out  of  consideration,  and  with  which  the  jury 
have  nothing  to  do.     (Mears  v.  Griffin,  2  Sc.  N.  S.  15.) 


DAMAGES.  381 

plaintiff  was  an  innocent  and  virtuous  female,  and  her  charac- 
ter had  been  destroyed  by  the  slanders  of  the  defendant  and 
others,  they  might  give  liberal  damages ;  but  if  tne  plaintiff  had 
so  destroyed  her  character,  by  her  own  lewd  and  dissolute  con- 
duct, as  to  have  sustained  no  injury  from  the  words  spoken  by 
the  defendant,  they  might  give  only  nominal  damages.  This 
was  held  correct.1456 

§  290.  In  general,  prospective  damages  are  not  to  be  al- 
lowed, and  damages  arising  after  suit  brought  are  not  to  be 
taken  into  account,1457  although  it  has  been  held  that  the  jury 
are  to  consider  the  probable  future  as  well  as  the  actual  past ; 1458 
and  in  an  action  of  libel  upon  copartners,  held  the  jury 
might  consider  the  prospective  injury  to  the  copartnership ; 1459 
and  in  a  case  of  libel  on  the  plaintiff  in  connection  with  a  steam 
vessel,  he  was  allowed  to  show  diminished  earnings  of  the  ves- 
sel subsequent  to  the  bringing  of  the  action.1460  Where  in  con- 
sequence of  the  defamation  the  plaintiff  lost  an  office  dependent 
on  the  will  of  his  superior,  it  was  held  the  jury  were  to  consider 
both  the  nature  and  tenure  of  the  office,  and  not  give  the  value 
of  an  annuity  certain.1461  Where  the  damage  proved  was  the 
loss  of  a  situation  of  fifty  pounds  a  year,  and  the  jury  gave  a 
verdict  for  sixty  pounds,  the  court  refused  to  disturb  it.1463 
Mental  suffering  and  sickness  induced  by  the  publication  are 
not  such  natural  consequences  of  defamation  as  to  amount  tp 
special  damage,1463  and  in  a  joint  action  by  partners,  it  was  held 
that  no  damages  could  be  given  for  any  injury  to  the  private 
feelings  of  the  plaintiffs,  but  only  for  such  injury  as  they  had 

1456  Flinty.  Clarke,  13  Conn.  361. 

1457  Goslin  v.  Corry,  7  Mann.  &  G.  343 ;  Keenholts  v.  Becker,  3  Denio,  346 ; 
Phil.  R.  R.  Co.  v.  Quigley,  21  How.  U.  S.  Rep.  202;  Mayne  on  Damages,  277. 

M68  jirue  v  _piutnieyt  36  Maine,  466 ;  Harrison  v.  Pearce  1  F.  &  F.  567. 
1469  Gregory  v.  Williams,  1  Carr.  &  K.  658. 
1400  Ingram  v.  Lawson,  6  Bing.  N.  C.  212. 

1461  Lever  v.  Torrey,  1  Murray,  350. 

1462  Jackson  v.  Hopperton,  17  C.  B.  829. 

14,8  Terwilligerx.  Wands,  17  N.  Y.  54;  Wilson  v.  Goit,  17  N.  Y.  442;  over- 
ruling Brandt  v.  Towsley,  13  Wend.  253;  Fuller  v.  Fenner,  16  Barb.  333,  and 
Swft  v.  Dickerman,  31  Conn.  285. 


382  PROCEEDINGS  IN  AN  ACTION. 

sustained  in  their  joint  trade.1464  The  jury  must  give  some 
damages,1465  and  where  actual  ill-will  is  shown,  they  may  give 
exemplary  or  vindictive  damages.1466  The  damages  cannot 
exceed  the  amount  claimed,  and  a  direction  to  that  effect  is 
proper  ; 1467  and  where  the  plaintiff  had  a  verdict  for  more  dam- 
ages than  he  claimed  in  his  declaration,  the  court  refused  him 
leave  to  amend  the  declaration  so  as  to  keep  the  verdict.1468 

§  291.  Where  there  are  several  counts,  and  a  verdict  is  en- 
tered generally  on  all  the  counts,  and  entire  damages  are  given, 
if  one  count  is  bad,  the  judgment  will  be  arrested,  and  a  venire 
de  novo  awarded.  But  if  the  judge  who  tried  the  cause  certi- 
fies that  the  evidence  applied  only  to  the  good  counts,  or  it  is 
otherwise  apparent  that  the  defective  count  has  not  influenced 
the  amount  of  the  verdict,  the  verdict  will  be  amended  by  con- 
fining it  to  the  good  counts.  Where  there  is  any  doubt  as  to 
any  one  count,  it  is  prudent  to  have  the  damages  assessed  sev- 
erally, or  to  abandon  the  doubtful  count,  and  take  a  verdict  on 
the   other  counts  only.1469     By  a  defective  count  is  meant  a 


1464  Haythorn  v.  Lawson,  3  Car.  <fe  P.  196. 

1465  Jewett  v.  Whitney,  43  Maine,  242 ;  although  it  may  be  shown  that  defend- 
ant was  benefited  by  the  defamation.     See  post,  Mitigation. 

14M  Taylor  v.  Church,  8  N.  Y.  452;  Hunt  v.  Bennett,  4  E.  D.  Smith,  647;  19 
N.  Y.  173 ;  Fry  v.  Bennett,  4  Duer,  247 ;  Kinney  v.  Hosea,  3  Hairing.  397 ;  Gil- 
breath  v.  Allen,  10  Ired.  67 ;  Cramer  v.  Noonan,  4  Wis.  231 ;  Hosley  v.  Brooks,  20 
HI.  115;  Knight  v.  Foster,  39  N.  Hamp.  576.  The  right  to  give  vindictive  dam- 
ages has  been  questioned.  See  Austen  v.  Wilson,  4  Cush.  273 ;  Taylor  v.  Car- 
penter, 2  Wood.  &  M.  1 ;  2  Greenl.  Ev.  tit.  Damages ;  Sedgwick  on  Damages, 
Appendix,  1st  edit,  and  4th  edit.  p.  532.  It  was  held  in  an  action  for  assault 
that  vindictive  damages  might  be  given,  although  the  defendant  had  previously 
been  indicted  for  the  same  assault,  and  fined  $250.     (Cook  v.  Ellis,  6  Hill,  467.) 

1467  Pool  v.  Devers,  30  Ala.  672. 

1468  Curtis  v.  Lawrence,  17  Johns.  111.  The  declaration  may,  it  seems,  be 
amended  on  the  terms  of  submitting  to  a  new  trial  (Bowman  v.  Early,  3  Duer, 
691),  if  the  defendant  insists  on  a  new  trial.     (Corning  v.  Coming,  2  Selden,  98.) 

1469  See  2  Stark.  Sland.  107;  Heard  on  Libel,  §§  303,  304;  Fry  v.  Bennett, 
28  N.  Y.  326;  Holt  v.  Scholefield,  6  T.  R.  694;  Lloyd  v.  Morris,  Willes  R.  443; 
Bennett  v.  Wells,  12  Mod.  420;  Grant  v.  Astle,  2  Doug.  730;  Empson  v.  Griffin, 
11  Adol.  &  El.  187;  Leach  v.  Thomas,  2  M.  <fe  W.  427;  Gould  v.  Oliver,  2  Scott 
N.  R.  630;  2  M.  &  G.  208  ;  Lewin  v.  Edwards.  9  M.  <fe  W.  720;  Day  v.  Robinson, 


VERDICT.  383 

count  which  shows  no  cause  of  action ;  a  count  which  contains 
actionable  words,  together  with  words  not  actionable,  would 
not  be  defective  so  as  to  affect  a  verdict  on  such  count.  In 
such  a  case  it  is  intended  that  the  verdict  applied  only  to  the 
actionable  words.1470 

§  292.  Where  there  is  a  misjoinder  of  several  counts,  and 
general  damages  are  assessed,  judgment  will  be  arrested.  In 
cases  of  misjoinder  of  counts,  the  verdict  may  be  taken  for  the 
plaintiff  on  the  counts  properly  joined,  and  for  the  defendant 
on  the  other  count  or  counts,  or  the  plaintiff  may  enter  a  nolle 
prosequi  as  to  the  count  or  counts  improperly  joined.1471  Where 
there  were  two  counts  upon  the  same  words,  but  published  at 
different  times,  a  general  verdict  for  the  plaintiff  was  upheld.1472 
A  general  verdict  on  five  counts  held  not  responsive  to  either 

1  Ad.  &  El.  558;  2  N.  <fe  M.  884;  Angle  v.  Alexander,  7  Bing.  119;  Eddowes  v. 
Hopkins,  1  Doug.  3VT ;  Reg.  v.  Verrier,  12  Adol.  &  El.  331,  overruling  Williams 
v.  Breedon,  1  Bos.  &  Pul.  329.  See  also  Union  Turnpike  Co.  v.  Jenkins,  1  Caines, 
392 ;  Hopkins  v.  Beadle,  id.  34*7  ;  LyU  v.  Clason,  id.  583  ;  Livingston  v.  Rogers,  id. 
587;  Stafford  v.  Green,  1  Johns.  565;  Cooper  v.  Bissell,  15  Johns.  318;  Sayre  v. 
Jewett,  12  Wend.  135;  Addington  v.  Allen,  11  Wend.  374;  Case  v.  Buckley,  15 
Wend.  327;  Yrisarri  v.  Clements,  3  Bing.  432;  Neal  v.  Lewis,  2  Bay,  204;  Hogg 
v.  Wilson,  1  Nott  &  McC.  216  ;  Kennedy  v.  Lowry,  1  Binney,  397;  Shafer  v.  Kint- 
zer,  id.  537  ;  Paul  v.  Harden,  9  S.  &  R.  23 ;  Smith  v.  Cleveland,  6  Mete.  332 ;  Baker 
v.  Sanderson,  3  Pick.  348;  Cornwall  v.  Gould,  4  Pick.  444;  Patten  v.  Gi'eeley,  17 
Mass.  182 ;  Barnardv.  Whiting,  7  Mass.  358 ;  Barnes  v.  Hurd,  11  Mass.  57 ;  Sullivan 
v.  Holker,  15  Mass.  374;  Clark  v.  Lamb,  6  Pick.  512;  Kingsley  v.  Bill,  9  Mass. 
198 ;  Dryden  v.  Dryden,  9  Pick.  546 ;  Hayter  v.  Moat,  2  M.  &  W.  56 ;  Gregory  v. 
Duke  of  Brunswick,  7  Sc.  N.  R.  972 ;  Harker  v.  Orr,  10  Watts,  245  ;  Ruth  v.  Kutz, 
1  Watts,  489;  Gosling  v.  Morgan,  32  Penn.  St.  Rep.  273;  Pembcrton  v.  Colls,  16 
Law  Jour.  Rep.  403,  Q.  B. ;  11  Jurist,  1011 ;  Cook  v.  Cox,  3  M.  &  S.  110;  Clem- 
ent v.  Fisher,  7  B.  &  Cr.  459;  1  M.  <fe  R.  281.  A  verdict  supported  by  one  count 
held  good.  Marshall  v.  Gunter,  6  Rich.  419;  Graves  v.  Waller,  19  Conn.  90; 
Bloom  v.  Bloom,  5  S.  &  R.  391 ;  ^oa^f  v.  Hatch,  8  Monthly  Law  Rep.  N.  S.  686. 

1470  Mayne  on  Damages,  237 ;  Bridges  v.  Horner,  Carthew,  230 ;  Nicholls  v. 
Reeve,  1  Freeman,  83 ;  Cheetham  v.  Tillotson,  5  Johns.  430 ;  Griffith  v.  Lewis,  8 
Q.  B.  844;  Alfred  v.  Farlow,  8  Q.  B.  853;  Lloyd  v.  Morris,  Willes,  443;  #M#/ies 
v.  i?e««,  4  M.  &  W.  204 ;  Campbell  v.  iewi«,  3  Barn.  &  Aid.  392 ;  Edwards  v. 
Reynolds,  Hill  <fe  Denio,  Sup.  53 ;  Sherry  v.  Frecking,  4  Duer,  452. 

14,1  Corner  v.  6'Aew,  3  M.  &  W.  350 ;  Kitchenman  v.  Sfee/,  3  Ex.  49  ;  Knight- 
ley  v.  Birch,  2  M.  <fc  S.  533. 

1472  Bradley  v.  Kennedy,  2  Greene,  231. 


384  PROCEEDINGS  IN  AN  ACTION. 

count.1473  A  verdict  that  "  the  defendant  spoke  and  published 
the  words  in  the  complaint  specified,"  was  upheld.1474  And  so 
of  a  verdict  that  found  "the  defendant  guilty  of  wilful  and 
malicious  slander."  1475  In  an  action  for  libel  there  were  eight 
special  pleas  of  justification,  and  issue  thereon ;  the  jury  found 
for  the  plaintiff  on  three  issues,  and  for  the  defendant  on  the 
residue  of  the  pleas ;  the  verdict  was  held  void  because  it  did 
not  assess  the  plaintiff's  damages  on  the  issues  found  for  him.1476 
A  plea  of  justification  in  an  action  for  a  libel  contained  three 
material  allegations,  as  to  one  of  which  the  jury  expressed 
themselves  of  opinion  that  the  proof  failed.  The  judge  told 
them  that,  to' warrant  a  finding  in  favor  of  the  defendant,  they 
must  be  satisfied  that  all  three  of  the  allegations  were  substan- 
tially made  out.  The  jury,  after  two  hours'  deliberation,  re- 
turned a  verdict  for  the  defendant  upon  that  plea.  The  court 
refused  to  set  it  aside.1477 

§  293.  As  the  amount  of  damages  in  an  action  for  slander 
or  libel  is  always  a  subject  for  the  exercise  of  the  sound  discre- 
tion of  the  jury,  who  may  give  more  or  less  according  to  their 
conclusions  from  the  whole  case  respecting  the  motives  of  the 
publisher,1478  a  verdict  in  such  an  action  will  not  be  set  aside 
for  excessive  damages  unless  there  is  some  suspicion  of  unfair 
dealing,1479  or  "  unless  the  case  be  such  as  to  furnish  evidence  of 
prejudice,  partiality  or  corruption  on  the  part  of  the  jury." 1480 
The  case  must  be  very  gross,  and  the  damages  enormous,  to  jus- 
tify ordering  a  new  trial  on  a  question  of  damages.1481     A  new 

1473  Cock  v.   Weatherby,  5  S.  &  M.  333. 

1474  Carlock  v.  Spencer,  2  Eng.  12. 

1476  Benaway  v.  Congre,Z  Chand.  214;  and  see  Harding  v.  Brooks,  5  Pick. 
244;  Scott  v.  Cook,  1  Duvall,  314. 

1478  Clement  v.  Lewis,  3  B.  &  B.  297 ;  3  B.  &  A.  702. 

1477  Napier  v.  Daniell,  3  Sc.  417;  2  Hodges,  187;  3  Bing.  N.  C.  77. 
3478  Davis  v.  Davis,  2  N.  &  M.  81 ;   Trabue  v.  Mayo,  3  Dana,  138. 

1479  Mayson  v.  Sheppard,  12  Rich.  Law,  S.  C.  254. 

1480  Lawyer  v.  Smith,  1  Denio,  207 ;  Hartin  v.  Hopkins,  9  Johns.  36 ;  Jarvis  v. 
Hathaway,  3  Johns.  180;  Rundell  v.  Butler,  10  Wend.  119;  Bailey  v.  Dean,  5  Barb. 
297;  Spencer  v.  McMasters,  16  111.  405. 

1481  Tillotson  v.  Cheetham,  2  Johns.  63 ;    Coleman  v.  Southwick,  9  Johns.  45 ; 


NEW  TRIAL.  385 

trial  was  granted  on  payment  of  costs,  and  under  peculiar  cir- 
cumstances, where  the  verdict  was  £150,1482  and  so  where  the 
damages  were  $5,000.1483  There  is  nothing  to  forbid  the  grant- 
ing a  new  trial,  in  a  proper  case,  for  insufficient  damages,  but 
the  granting  a  new  trial  for  insufficient  damages  is  of  rare  oc- 
currence. Where  the  plaintiff  was  a  minister  of  the  gospel,  and 
the  damages  only  one  farthing,  the  court  refused  a  new  trial.1484 
The  court  may  order  a  new  trial  unless  the  plaintiff  consents  to 
reduce  the  damages.  Thus  where  the  damages  were  $600,  the 
court  ordered  a  new  trial,  unless  the  plaintiff  would  consent  to 
reduce  them  to  $200.1485 

§  294.  A  new  trial  will  not  be  granted  because  a  verdict  for 
defendant  should  have  been  for  plaintiff  with  nominal  dam- 


Southwick  v.  Stevens,  10  Johns.  443 ;  Root  v.  King,  7  Cow.  613  ;  Moody  v.  Baker, 
5  Cow.  351;  Cole  v.  Perry,  8  Cow.  214;  Ostrom  v.  Calkins,  5  Wend.  263  ;  Doug- 
las v.  Tousey,  2  Wend.  352 ;  Cook  v.  Hill,  3  Sand.  341 ;  Riley  v.  Nugent,  1  A.  K. 
Marsh.  431 ;  Ryckman  v.  Parkins,  9  Wend.  470.  The  court  refused  to  grant  a  new 
trial  for  excessive  damages  where  the  amount  was  severally  $1,000  (Bell  v.  How- 
ard, 4  Litt.  117);  $300,  charge  horse  stealing  (Faulkner  v.  Wilcox,  2  Litt.  369); 
$2,736,  charge  perjury  (Sanders  v.  Johnson,  6  Blackf.  51);  $500,  charge  horse 
stealing  (Teagle  v.  Deboy,  8  Blackf.  134);  £750,  charge  against  a  minister  of  the 
gospel  (Highmore  v.  Harrington,  3  C.  B.  N.  S.  142) ;  $334  (Ross  v.  Ross,  5  B.  Mon- 
roe, 20);  $212  (St.  Martin  v.  Desnoyer,  1  Min.  156);  $4,000  ■Litton  v.  Young,  2 
Met.  (Ky.),  558);  $15,000  (Trumbull  v.  Gibbons,  N.  Y.  Judicial  Repository,  1); 
$10,000  (Fry  v.  Bennett,  4  Duer,  247);  £1,000  (Gfroever  v.  Hoffman,  16  Up.  Can. 
Q.  B.  R.  441) ;  $707  (Shute  v.  Barrett,  7  Pick.  82) ;  $591  (Oakes  v.  Barrett,  7  Pick. 
82);  $3,500  (McDougall  v.  Sharp,  1  City  Hall  Recorder,  154);  $1,400  (Bodwell  v. 

Osgood,  3  Pick.  379;  and  see  Bakery. Br iggs,  8  Pick.  122;  Sargent  v. ,  5  Cow 

106;  Mayneon  Dam.  347;  Chambers  v.  Caulfield,  6  East,  256;  Hewlett  v.  Crunch 
ley,  5  Taunt.  277 ;  Coffin  v.  Coffin,  4  Mass.  1 ;  Neal  v.  Lewis,  2  Bay,  204 ;  Edgar 
v.  Newell,  24  Up.  Can.  Q.  B.  Rep.  215 ;  Myers  v.  Curry,  id.  470;  Treanor  v.  Dona 
hue,  9  Cush.  228 ;  Wood  v.  Gunston,  Style,  465,  referred  to  Clapp  v.  Hudson  River 
R.  R.  Co.  19  Barb.  465;  Bruton  v.  Downes,  1  Fost.  &  F.  668. 

1482  Swan  v.  Clelland,  13  Up.  Can.  Q,  B.  Rep.  335 ;  and  the  plaintiff  having 
died  since  the  verdict  was  rendered,  defendant  was  put  under  terms  not  to  assign 
death  of  plaintiff  as  error,  if  on  new  trial  the  verdict  was  for  the  plaintiff. 

1483  Netle  v.  Harrison,  2  McCord,  230. 

1484  Kelly  v.  Sherlock,  1  Law  Rep.  686,  Q.  B.  and  Bee  Mean  v.  Griffin,  2  Sc.  N  . 
S.  15;  Irwin  v.  Cook,  24  Texas,  244. 

1485  Potter  v.  Thompson,  22  Barb.  87. 

25 


386  PROCEEDINGS  IN  AN  ACTION. 

ages.1486  A  new  trial  will  he  granted  to  admit  newly  discovered 
evidence  to  support  a  defence  of  not  guilty,  but  not  to  support 
a  justification.1487  A  new  trial  was  refused  where  since  the  ver- 
dict for  the  plaintiff  he  had  been  convicted,  partly  on  the  evi- 
dence of  the  defendant,  of  the  offence  charged.1488  A  new  trial 
was  refused  where  a  witness  for  the  plaintiff  had  since  the  trial 
been  convicted  of  perjury.1489  Where  plaintiff  obtained  a  ver- 
dict for  one  shilling  damages,  in  consequence,  as  he  supposed, 
of  the  admission  of  improper  evidence,  it  was  held  that  having 
recovered  a  verdict,  he  could  not  insist  on  his  objections  to  evi- 
dence, and  a  new  trial  was  refused.1490 

§  295.  Actions  for  slander  and  libel  are  in  the  nature  of  a 
penal  action,  and  though  the  jury  find  for  the  defendant  against 
the  weight  of  evidence,  a  new  trial  is  never  [seldom]  granted.1491 
To  warrant  a  new  trial  on  the  ground  that  the  verdict  is  against 
evidence,  it  must  be  a  very  clear  case.1492  A  new  trial  was 
granted  because  the  language  published  did  not  warrant  the 
innuendoes ; 1493  and  so  where  the  innuendo  was  disproved.1494 

§  296.  In  New  York,  if  the  plaintiff  recover  less  than  $50 
damages,  he  can  recover  no  more  costs  or  disbursements  than 
damages.1495     The  defendant  may,  at  any  time  before  verdict, 

1486  Patton  y.  Hamilton;^  Ind.  256;  Rundell  v.  Butler,  10  Wend.  119.     See, 
however,  Levi  v.  Milne,  4  Bing.  195. 
1481  Beers  v.  Root,  9  Johns.  64. 

1488  Symms  v.  Blake,  2  C.  M.  &.  R.  416 ;  4  Dowl.  Pra.  Cas.  263 ;  1  Gale,  182. 

1489  Eakins  v.  Evans,  3  Up.  Can.  Q.  B.  Rep.  383,  0.  S. 

14S0  Rogers  v.  Munns,  25  Up.  Can.  Q.  B.  Rep.  153 ;  and  see  Smith  v.  Kerr,  1 
Barb.  155  ;   Case  v.  Marks,  20  Conn.  248. 

1491  Ex  parte  Bailey,  2  Cow.  479 ;  Hartin  v.  Hopkins,  9  Johns.  36. 

1492  Rooty.  King,  7  Cow.  613,  affirmed  4  Wend.  113;  Paddock  v.  Salisbury,  2 
Cow.  811;  Kelly  v.  Partington,  4  B.  &  Ad.  700;  Fisher  v.  Clement,  10  B.  <fc  Cr. 
472;  Blackburn  v.  Blackburn,  4  Bing.  395;  1  M.  <fe  P.  33;  Broom  v.  Gosden,  1  C. 
B.  728;  Hunt  v.  Bennett,  4  E.  D.  Smith,  657. 

1493  Yrisarri  v.  Clement,  3  Bing.  432. 

1494  Johnston  v.  McDonald,  2  Up.  Can.  Q.  B.  Rep.  209. 
1496  Code  of  Pro.  §  304. 


costs.  387 

offer  to  allow  judgment  to  be  taken  against  him  for  a  certain 
sum  with  c#ts ;  the  non-acceptance  by  plaintiff  of  such  an 
offer  will  subject  him  to  costs  subsequent  to  its  service,  unless 
he  recover  a  more  favorable  judgment.1496  In  England,  if  the 
damages  in  an  action  for  slanderous  words  are  less  than  forty 
shillings,  the  plaintiff,  by  statute  21  James  I,  recovers  no  more 
costs  than  damages ;  the  statute  was  held  not  to  apply  to  ac- 
tions where  the  special  damages  are  the  gist  of  the  action,  nor  to 
slander  of  title  nor  to  libel.1497 


1496  Code  of  Pro.  §  385. 

1497  As  to  costs  in  the  courts  of  England,  Skelton  v.  Seward,  1  Dowl.  411 ; 
Skinner  v.  Shoppee,  6  Bing.  N.  S.  131;  Simpson  v.  Hardie,  2  M.  &  W.  84;  5 
Dowl.  304;  Foster  v.  Pointer,  8  M.  &  W.  395;  1  DowL  28;  9  C.  <fe  P.  718 ; 
Empson  v.  Fairfax,  3  Nev.  &  P.  385  ;  Dpdd  v.  Crease,  2  Cr.  &  M.  223 ;  4  Tyrw. 
74 ;  2  Dowl.  269 ;  La/one  v.  Smith,  4  Hurl.  &  Nor.  158 ;  Saville  v.  Jardine,  2  H. 
Black.  531;  BTalfordv.  Smith,  4  East,  567 ;  Richards  v.  Cohen,  1  Dowl.  533; 
Coodall  v.  Email,  3  Dowl.  743 ;  Grenfel  v.  Pierson,  1  Dowl.  400 ;  Turner  v.  Hor- 
ton,  Willes,  438;  Andrews  v.  Thompson,  8  Bing.  431 ;  Forbes  v.  Gregory,  1  Cr.  & 
M.  435;  1  Dowl.  679;  Harrison  v.  Bush,  34  Eng.  Law  &  Eq.  R.  112;  Biddulph 
v.  Chamberlain,  24  Eng.  Law  &  Eq.  R.  204;  Kelly  v.  Partington,  5  B.  &  Ad.  645 ; 
2Nev.  &  M.  460;  Prynnev.  Brown,  1  Dowl.  N.  S.  680 ;  2  Stark.  Sland.  113 ;  Stat. 
58  Geo.  III.  ch.  30 ;  3  &  4  Vict.  ch.  24.  As  to  costs  in  Vermont,  see  Nichols  v. 
Packard,  16  Verm.   147.     In  Indiana,  see  Skinner  v.  Bronnenburg,  18  Ind.  363. 


CHAPTER  XII. 

PARTIES. 

Question  as  to  parties  anticipated.  Action  by  alien.  Outlaw. 
Rebel.  Executors  or  administrators.  Married  woman. 
Husband  and  wife.  Partners.  General  rule  as  to  joinder. 
Action  against  husband  and  wife.     Contribution. 

§  297.  The  questions  who  may  sue  and  who  may  be  sued, 
of  course  generally  depend  upon  the  prior  questions  of  rights 
and  liabilities,  and  therefore,  to  some  extent,  the  question  of 
parties  has  been  anticipated.1498  Subject  to  any  exceptions 
which  have  been  or  may  be  mentioned,  the  rules  as  to  parties 
which  prevail  in  actions  for  torts  generally  apply  to  the  actions 
for  slander  and  libel. 

§  298.  It  was  held  that  an  alien  friend,  although  residing  in 
a  foreign  country,  might  maintain  an  action  for  a  libel  pub- 
lished in  England.1499  Where  the  plaintiff  in  an  action  for 
libel  was  at  the  commencement  of  the  action  an  outlaw,  of 
which  the  defendant  was  ignorant  until  after  notice  of  trial, 
the  court  after  the  trial  stayed  the  proceedings,  but  removed 
the  stay  on  the  outlawry  being  reversed.1500  In  an  unreported 
case  in  New  York  (Cummings  v.  Bennett),  it  being  shown  that 
the  plaintiff  in  an  action  for  libel  was  an  unpardoned  rebel,  the 
court  at  special  term  made  an  order  dismissing  the  complaint, 
but  the  general  term  reversed  the  order.     In  an  action  for 

limAnte,  §§  115,  119,  notes  113,  11 7,  118,  119,  120.  Where  there  were  two 
actions  for  the  same  libel,  one  against  the  editor  and  the  other  against  the  pub- 
lisher of  the  newspaper  in  which  the  publication  was  made,  an  application  to  con- 
solidate was  denied.  ( Cooper  v.  Weed,  2  How.  Pra.  R.  40 ;  and  see  post,  note  1517.) 

1499  Pisani  v.  Lawson,  6  Bing.  N.  C.  90  ;  8  Dowl.  57;  8  Sc  182. 

1600  Somers  v.  Holt,  8  Dowl.  Pr.  Cas.  506. 


PARTIES.  389 

words  imputing  murder,  the  court  allowed  the  defendant  until 
the  next  term  to  plead,  upon  the  ground  that  the  plaintiff  was 
to  be  tried  for  the  alleged  murder  on  an  indictment  then  pend- 
ing.1501 

;:  299.  By  the  common  law,  actions  of  tort  die  with  the 
person,  and  this  rule  applies  to  actions  for  slander 1502  and  libel, 
except  in  those  States  where  a  different  rule  is  prescribed  by 
statute.  In  New  York,  actions  of  tort,  except  slander  and 
libel,  survive.1508  But  the  death  of  a  plaintiff  after  a  judgment 
in  his  favor,  and  pending  an  appeal  from  the  judgment,  does 
not  abate  the  appeal,  and  the  personal  representatives  of  the 
deceased  may  be  substituted  as  respondents.1504  By  statute  in 
Maine,  actions  for  slander  and  libel  survive,  and  may  be  main- 
tained in  the  name  of  the  executor  or  administrator.1505  A 
right  of  action  for  slander  or  libel  is  not  assignable,  and  does 
not  pass  under  a  general  assignment  by  a  judgment  creditor  to 
a  receiver  of  his  estate.1506 

§  300.  By  statute  in  New  York,  a  married  woman  may  sue 
alone  and  without  her  husband,  for  slander  or  libel ; 1507  and  so 
in  Pennsylvania.1508     It  has  been  held  that  the  New  York  Stat- 

1501  Gibson  v.  Niven,  Barnes'  Notes,  224. 

1502  1  Wm.  Saund.  316  a,  6th  ed. ;  Nettleton  v.  Dinehart,  5  Cush.  643  ;  Walters 
v.  Nettleton,  5  Cush.  544 ;  Walford  on  Parties,  1392,  1449. 

1503  2  Rev.  Stat,  of  N.  Y.  44*7,  §§1,2.  By  statute  in  Ohio  and  .Maryland,  the 
right  of  action  for  slander  or  libel  does  not  survive.  In  Ireland  v.  Champneys,  4 
Taunt.  884,  an  action  for  libel,  after  interlocutory  judgment  and  writ  of  inquiry 
executed,  the  plaintiff  died,  held  that  final  judgment  could  not  be  entered,  the 
suit  having  abated  by  the  plaintiff's  death.  See  Kramer  v.  Waymark,  1  Law 
Reports,  Ex.  243. 

1504  This  was  done  in  Sanford  v.  Bennett,  24  X.  Y.  20. 

iso6  Cutting  v.  Goodridge,  46  Maine,  82.  In  Iowa,  by  statute,  an  action  of  libel 
is  not  abated  by  the  death  of  the  defendant.  ( Carson  v.  McFadden,  10  Iowa  [2 
With.],  91.)  Death  of  a  defendant  after  an  appeal,  held  to  abate  the  appeal. 
{Long  v.  Hitchcock,  3  Ham.  274.) 

1506  Hudson  v.  Plets,  1 1  Paige,  1 80 ;  and  see  Dowling  v.  Brown,  4  Irish  Com. 
Law  Rep.  265. 

1507  Laws  of  N.  Y.  1860,  ch.  90;  Id.  1862,  ch.  172. 
1608  Rangier  v.  Hummell,  37  Penn.  St.  R.  130. 


390  PARTIES. 

ute  does  not  authorize  a  suit  for  slander  by  a  wife  against  her 
husband.1509  And  it  was  held  in  Pennsylvania,  that  a  married 
woman  could  not  maintain  an  action  for  slander  published  at 
the  instance  of  her  husband.1510 

§  301.  Independently  of  any  statutory  provision  for  lan- 
guage actionable  per  se,  published  concerning  a  married  woman, 
or  concerning  a  woman  who  afterwards  marries,  the  action 
should  be  brought  in  the  name  of  the  husband  and  wife.1511  In 
such  a  case  the  damage  is  to  both  plaintiffs,  and  the  right  of 
action  in  case  of  the  death  of  the  husband  survives  to  the  wife ; 
but  if  the  wife  dies  before  verdict,  the  action  abates.1512  For 
language  concerning  a  married  woman,  but  actionable  only  be- 
cause of  special  damage  to  the  husband,  the  husband  must  sue 
alone.1513  These  rules  are  not  affected  by  the  fact  that  the  hus- 
band and  wife  live  apart  under  a  deed  of  separation.1514 
Where  an  action  was  brought  by  a  wife  living  apart  from  her 
husband  under  articles  of  separation,  in  the  names  of  her  hus- 
band and  herself,  for  defamatory  words  spoken  of  her,  it  was 
held  that  a  release  of  the  cause  of  action  executed  by  the  hus- 
band was  a  bar  to  the  suit,  although  in  the  articles  of  separa- 
tion the  husband  had  covenanted  that  suits  might  be  brought 
in  the  joint  names  of  himself  and   his  wife,  for  any  injury  to 

1509  pretty  v  preethy,  42  Barb.  641  ;  as  to  the  right  of  a  wife  to  protection 
against  slander  by  her  husband,  see  Deut.  xxii.  13,  22. 

1610  Tibbs  v.  Brown,  2  Grant's  Cas.  (Penn.)  39. 

16J1  1  Stark.  Slan.  349;  Ebersol  v.  King,  3  Binney,  555;  Newton  v.  Rowe,  8 
Sc.  N.  R/.26;  Dengate  v.  Gardiner,  4  M.  &  W.  5  ;  Grove  v.  Hart,  Sayre,  33;  Bald- 
win v.  Flower,  3  Mod.  120;  Long  v.  Long,  4  Barr,  29. 

1512  Stroop  v.  Swartz,  12  S.  &  R.  76  ;  and  see  Smith  v.  Hixon,  Str.  977,  and  3 
T.  R.  627.  Case  for  words  by  husband  and  wife  against  defendants,  husband 
and  wife ;  pending  the  action  the  male  defendant  died,  and  his  widow  remarried. 
The  court  inclined  that  the  writ  abated,  but  took  time  to  advise.  ( White  v.  Ear- 
wood,  Style,  138;  Viner's  Abrid.  Baron  and  Feme,  A.  a.) 

1513  Williams  v.  Holdridge,  22  Barb.  396;  Gazynski  v.  Colburn,  11  Cush.  10; 
Grove  v.  Hart,  Bull.  N.  P.  7 ;  Saville  v.  Sweeney,  1  Nev.  &  M.  254  ;  4  B.  &  Adol. 
514;  Horton  v.  Byles,  1  Sid.  387 ;  Long  v.  Long,  4  Barr,  29  ;  1  Stark.  Slan.  350; 
Bash  v.  Sommer,  20  Penn.  St.  R.  159  ;  Cdleman  v.  Har court,  1  Lev.  140;  Klein  v. 
Hentz,  2  Duer,  633. 

",4  Beach  v.  Ranney,  2  Hill,  309. 


PARTIES.  391 

the  person  or  character  of  the  wife.1515  For  a  charge  of  a  joint 
larceny  by  husband  and  wife,  semble  the  husband  should  sue 
alone,  because  the  wife  is  prima  facie  not  liable  criminally  for 
a  larceny  committed  in  the  presence  of  her  husband.1516 

§  302.  Where  the  language  published  concerns  both  hus- 
band and  wife,  the  husband  may  sue  alone  for  the  injury  to 
him,  and  the  husband  and  wife  may  sue  jointly  for  the  injury 
to  the  wife.1517  In  an  action  by  husband  and  wife,  a  plea  that 
the  plaintiffs  were  not  man  and  wife  at  the  time  of  the  com- 
mencement of  the  action  is  a  good  plea  in  bar.1518  But  it  is 
not  a  defence  to  an  action  by  husband  and  wife  that  the  plain- 
tiffs were  not  married  at  the  time  of  the  publication  complained 
of.1519  Where  the  husband  and  wife  are  improperly  united  as 
plaintiffs,  and  there  is  no  demurrer,  the  error  is  cured  bv  ver- 
dict,1320 or  by  omitting  to  demur.1521 

§  303.  For  language  published  concerning  partners  in  the 
way  of  their  trade,  all  the  partners  may  or  should  join;1522  but 
if  the  language  concerns  and  injuriously  affects  either  partner 

1515  Beach  v.  Beach,  2  Hill,  260. 

1616  Bash  v.  Sommer,  20  Penn.  St.  R.  159. 

15:7  Gazynski  v.  Colburn,  11  Cush.  10;  Bash  v.  Sommer,  20  Penn.  St.  R.  159; 
Emingtonv.  Gardiner,  1  Selw.  N.  P.  301;  Smith  v.  Hobson,  Style,  112;  Ebersoll 
v.  King,  3  Binney,  555;  Harty.  Crow,  7  Blackf.  351,  ante,  note  118.  The  court 
will  not  order  such  actions  to  be  consolidated.  Anon.  Selwyn  N.  P.  301 ;  Swith- 
in  v.  Vincent,  2  Wils.  227  ;  Subley  v.  Holt,  Bull.  N.  P.  5. 

1518  Chantler  v.  Lindsey,  16  Law  Jour.  R.  16,  Ex. ;  16  M.  &  W.  82  ;  4  Dowl.  <fe 
L.  339. 

3519  Spencer  v.  McMasters,  16  111.  405;  and  see  Benaway  v.  Congre,  3  Chand. 
214.  But  in  an  action  by  husband  and  wife,  for  words  imputing  adultery  to  the 
wife,  it  was  held  necessary  to  aver  that  they  were  husband  and  wife  at  the  time 
of  the  publication.     {Ryan  v.  Madden,  12  Verm.  51.) 

1620  Ryfisellv.  Come,  1  Salk.  119;  2  L'd  Raym.  1031;  Todd  v.  Bedford,  11 
Mod.  264;  Lewis  v.  Babcock,  18  Johns.  443. 

1621  Code  of  Pro.  N.  Y.  §  145.  This  defect  cannot  be  insisted  upon  under  a 
demurrer  that  the  complaint  does  not  state  a  cause  of  action.  (Eldridgc  v.  Bell, 
12  How.  Pra.  R.  547.)  No  action  can  be  maintained  for  the  price  of  libellous  pic- 
tures. (Fores  v.  Johnes,  4  Esp.  97.)  A  printer  cannot  recover  for  printing  a  libel. 
(Poplett  v.  Slockdale,  R.  &  M.  337.)  Nor  could  an  action  be  maintained  for  breach 
of  a  contract  to  furnish  manuscript  of  defamatory  matter.  ( Gale  v.  Leckie,  2  Stark. 
R.  107.)   Or  for  pirating  a  libellous  book.     (Stockdale  v.  Onwhyn,  5  B.  &  C.  178.) 

1522  Cook  v.  Batchellor,  3  B.  &  P.  150 ;  2  East,  426 ;    Le  Fanu  v.  Malcolmson,  1 


392  PARTIES. 

individually,  he  may  sue  alone.1523  The  general  rule  is  that 
where  the  injury  is  several,  each  person  injured  must  sue  sepa- 
rately and  alone  ;  as  if  one  say,  "  A.  and  B.  murdered  C,"  or 
"  Either  A.  or  JB.  murdered  C,"  A.  and  B.  cannot  maintain  a 
joint  action.1524 

§  304.  For  a  publication  by  a  married  woman  of  defama- 
tory language,  the  action  must  be  against  her  and  her  hus- 
band.1525 

§  305.  In  certain  cases  the  plaintiff  is  entitled  to  elect  de 
Tneliorilms  darnnis  [§  119],  or  as  to  which  of  several  parties  he 
will  sue,  but  neither  in  such  cases  nor  in  any  other  case  can 
there  be  any  contribution  between  the  parties,  it  being  a  gene- 
ral rule  of  law  that  there  is  no  contribution  between  wrong- 
doers.1526 

Ho.  of  L'dsCas.  63V;  13  Law  Times,  61;    Foster  v.  Lawson,  3  Bing.  452;    11 
Moore,  360 ;  Browl.  Rediv.  81 ;  Haythorn  v.  Lawson,  3  Car.  &  P.  196  ;   Pechell  v. 
Watson,  8  M.  &  W.  691 ;  2  fm.  Saund.  117,  6th  ed. 

1523  Taylor  v.  Church,  1  E.  D.  Smith,  279 ;  Harrison  v.  Bevington,  8  Car.  &  P. 
708;  Robinson  v.  Marchaut,  7  Q.  B.  918;  Fidler  v.  Delavan,  20  Wend.  57;  Long- 
man v.  Pole,  1  M.  &  M.  223. 

1524  Smithy.  Cooker,  Cro.  Car.  513;  10  Mod.  198.  As  to  one  action  against 
several  for  one  libel,  see  Harris  v.  Huntington,  2  Tyler.  147  ;  Watts  v.  Fraser,  1 
C.  &  P.  369 ;  Miller  v.  Butler,  6  Cush.  71 ;  Glass  v.  Stewart,  10  S.  &  R.  222,  ante, 
note  1498. 

1626  Head  v.  Briscot  5  Car.  &  P.  484  ;  and  see  ante,  note  118;  Swithin  v.  Vin- 
cent, 2  Wile.  227;  Burcher  v.  Orchard,  Style,  349;  2  Wm.  Saund.  117  d,  6th  ed. 

1626  See  Merryweaiher  v.  Nixon,  8  T.  R.  186  and  notes  thereto;  2  Smith's  Lead. 
Cas.  and  in  addition  Moscati  v.  Lawson,  7  C.  &  P.  32 ;  Andrews  v.  Murray,  33 
Barb.  354,  citing  Miller  v.  Fcnton,  11  Paige,  18;  Coventry  y.  Barton,  17  Johns. 
142:  Peck  v.  Ellis,  2  Johns.  Ch.  131 ;  Pearson  v.  Skelton,  1  M.  «fe  W.  504.  No 
contract  will  be  implied  to  indemnify  a  party  against  the  consequences  of  an  ille- 
gal act,  e.  g.  the  publication  of  a  libel.  (Shackell  v.  Rosier,  3  Sc.  59  ;  2  Bing.  N. 
C.  634.)  And  semble  the  proprietor  of  a  newspaper  convicted  and  fined  for  the 
publication  of  a  libel  in  his  paper,  which  libel  was  inserted  without  his  knowl- 
edge or  consent  by  the  editor,  has  no  right  of  action  against  the  editor  for  the 
damages  sustained  through  such  conviction.  {Colburn  v.  Patmore,  1  C.  M.  &  R. 
83  ;  4  Tyr.  677.)  One  cannot  take  security  to  be  indemnified  against  the  conse- 
quences of  an  illegal  act.  (Domat  Civil  Law,  B'k  iii.  tit.  4,  §  1,  div.  viii;  and 
same  book  and  title,  §  5,  div.  1 ;  and  see  Howe  v.  Buffalo  <k  Erie  R.  R.  38 
Barb.  124;  St.  John  v.  St.  John's  Church,  15  Barb.  346.)  A  promise  to  indemnify 
one  for  publishing  a  libel,  is  void.     (Arnold  v.  Clifford.  2  Sumner,  23S.) 


CHAPTER  XIII. 


PLEADING. THE    COMPLAINT. 


General  requisites  of  a  complaint.  Complaint  for  language 
concerning  a  person  only  to  he  considered.  Inducement. 
Colloquium.  Publication.  Matter  published.  Innuendo. 
Special  damage.     Several  counts.    Supplemental  complaint. 

§  306.  The  complaint  corresponds  to  the  declaration  in  the 
common  law  system  of  pleading.  Its  general  requisites  are 
that  it  must  state  (1)  the  name  of  the  court  in  which  the  ac- 
tion is  pending  ;  (2)  the  names  of  the  parties  ;  (3)  the  county 
in  which  it  is  desired  the  issues  shall  be  tried ;  (4)  the  facts 
which  constitute  the  cause  of  action ;  (5)  a  demand  of  relief. 
It  must  be  subscribed  by  the  plaintiff  or  his  attorney,  and  may, 
at  the  option  of  the  plaintiff,  be  verified.  Of  these  several 
requisites  we  purpose  to  consider  in  detail  only  the  fourth — 
the  statement  of  the  facts  which  constitute  a  cause  of  action. 

§  307.  The  statement  of  a  cause  of  action  must  necessarily 
differ  more  or  less  according  to  the  difference  in  the  state  of  facts 
of  each  particular  case.  But  there  are  certain  allegations  essen- 
tial in  every  case  to  the  sufficiency  of  such  a  statement ;  we 
will  show  what  are  these  allegations,  and  endeavor  to  explain 
the  rules  by  which  their  sufficiency  may  be  tested.  We  pre- 
mise by  observing  that  we  address  ourselves  exclusively  to  the 
statement  of  a  cause  of  action  for  slander  or  libel  concerning 
the  person.  Such  a  statement  may  be  conveniently  consid- 
ered under  the  following  heads :  (1)  The  inducement ;  (2)  The 
colloquium  ;  (3)  The  act  of  publication  ;  (4)  The  statement  of 
the  defamatory  matter  published  ;  (5)  The  innuendoes  ;  (6)  The 
damages. 


394  PLEADING. 

§  308.  The  Inducement. — We  attempted  in  a  previous 
chapter  [Ch.  YII.]  to  explain  (1)  that  the  actionable  quality  of 
language  was  dependent  upon  its  construction,  and  (2)  how  the 
construction  may  be  affected  by  a  variety  of  extrinsic  circum- 
stances. It  is  the  office  of  the  inducement  to  narrate  the  ex- 
trinsic circumstances  which,  coupled  with  the  language  pub- 
lished, affects  its  construction  and  renders  it  actionable ;  where 
standing  alone  and  not  thus  explained,  the  language  would 
appear  either  not  to  concern  the  plaintiff,  or  if  concerning  him 
not  to  affect  him  injuriously.1527  This  being  the  office  of  the 
inducement,  it  follows  that  if  the  language  published  does  not 
naturally  and  per  se  refer  to  the  plaintiff  nor  convey  the  mean- 
ing the  plaintiff  contends  for,  or  if  it  is  ambiguous  or  equivo- 
cal, and  requires  explanation  by  some  extrinsic  matter  to  show 
its  relation  to  the  plaintiff  and  make  it  actionable,  the  com- 
plaint must  allege  by  way  of  inducement  the  existence  of  such 
extrinsic  matter ; 1528  but  that  where  the  language  published  is 

1527  «  in(jUCement  is  the  statement  of  the  facts  out  of  which  the  charge  arises, 
or  which  are  necessary  or  useful  to  make  the  charge  intelligible."  Tindal,  Ch.  J., 
Taverner  v.  Little,  5  Bing.  N.  C.  678. 

1528  Inducement  is  necessary  where  the  language  does  not  naturally  and 
per  se  convey  the  meaning  which  the  plaintiff  would  attribute  to  it,  and  where 
a  reference  to  some  extrinsic  fact  is  necessary  to  explain  it.  (Borsey  v.  Whipps, 
8  Gill,  457 ;  Fry  v.  Bennett,  5  Sandf.  54 ;  Hull  v.  Blandy,  1  T.  &  J.  480 ;  Gosling 
v.  Morgan,  32  Penn.  St.  R.  273  ;  Galloway  v.  Courtney,  10  Rich.  Law  (S.  C.)  414; 
The  State  v.  Neese,  2  Tayl.  270 ;  Cannon  v.  Phillips,  2  Sneect  (Tenn.)  185  ;  Ed- 
gerly\.  Swain,  32  N.  Hamp.  478;  Smith  v.  Gaffo'rd,  31  Ala.  35;  Bumpkins  v. 
Justice,  1  Smith  (Ind.),  322.)  Where  the  language  is  claimed  to  be  ironical,  it 
must  be  so  alleged  in  the  inducement.  (Boydell  v.  Jones,  4  M.  <fe  W.  446 ;  7 
Dowl.  Pra.  Cas.  210.)  In  slander  the  words  stated  in  the  declaration  were,  "Thou 
set  fire  to  those  buildings,  and  thou  wilt  never  be  easy  till  thou  hast  told  it."  There 
was  no  introductory  averment  that  the  houses  had  been  feloniously  burned.  A  rule 
for  arresting  the  judgment  was  made  absolute.  (Rigbyv.  Heron,  1  Jur.  558.)  Acom- 
plainton  a  charge  that  plaintiff  had  carried  away  a  deposition  taken  before  a  justice 
of  the  peace,  must  show  that  the  deposition  was  taken  in  a  proceeding  in  which  the 
justice  had  jurisdiction,  otherwise  the  carrying  away  the  deposition  would  not  be 
any  criminal  offence.  (Ayres  v.  Covell,  18  Barb.  260.)  Where,  in  an  action  of 
slander  brought  by  an  unmarried  female,  the  plaintiff's  petition  alleged  that  the 
defendant  had  charged  her  with  having  given  birth  to  a  child,  without  any  aver- 
ments showing  that  the  hearers  understood  that  the  language  used  conveyed  a 
charge  of  bastardy,  or  imputed  a  want  of  chastity  to  the  plaintiff,  to  which  petition 
the  defendant  demurfed,  it  was  held  that  the  demurrer  should  be  sustained. 
(Wilson  v.  Beighler,  4  Iowa,  427.) 


THE  COMPLAINT.  395 

actionable^/3  se,  where  there  is  no  ambiguity,  either  in  respect 
to  the  person  whom  the  language  concerns  or  in  respect  to  the 
actionable  quality  of  the  language,  that  in  such  cases  no  in- 
ducement is  necessary.1529  Hence  it  will  be  perceived  that 
inducement  is  not  essential  to  the  sufficiency  of  a  statement  of 
a  cause  of  action  in  every  case,  but  in  those  cases  only  where, 
without  the  facts  contained  in  the  inducement,  the  publication 
would  not  naturally  and^r  se  refer  to  the  plaintiff  nor  con- 
vey the  meaning  the  plaintiff  contends  for,  nor  be  construed 
as  actionable. 

§  309.  In  England  the  Common  Law  procedure  act  has  ab- 
rogated the  necessity  of  any  matter  of  inducement  in  order  to 
show  the  defamatory  meaning  of  the  language  published,  and 
enacts  that  the  plaintiff  may  aver  that  the  matter  complained 
of  was  used  in  a  defamatory  sense,  specifying  such  defamatory 
sense,  without  any  prefatory  averment  to  show  how  such  mat- 
ter was  used  in  that  sense,  and  such  averment  shall  be  put  in 
issue  by  the  denial  of  the  alleged  libel  or  slander  ;  and  where 
the  matter  set  forth,  with  or  without  the  alleged  meaning,  shows 
a  cause  of  action,  the  declaration  shall  be  sufficient.1530 

§  310.  In  New  York,  the  Code  of  Procedure  of  that  State 
dispenses  with  the  necessity  of  any  inducement  to  show  that 


1529  j^0  inf]ucement  ig  necessary  where  (1)  the  language  is  prima  facie  action- 
able/>«r  se.  (Dorsey  v.  Whipps,  8  Gill,  457;  McGough  Y.Rhodes,  7  Eng.  625.) 
(2)  Where  the  language  in  its  ordinary  acceptation  imports  a  charge  of  crime. 
(Robinson  v.  Keyser,  2  Foster  (N.  H.),  323 ;  Bricker  v.  Potts,  12  Penn.  St.  R.  (2 
Jones)  200.)  And  see  Smith  v.  Hamilton,  10  Rich.  Law  (S.  C),  44  ;  Goodrich  v. 
Davis,  1 1  Mete.  473.  As  if  the  words  impute  a  charge  that  the  plaintiff  burnt 
his  barn,  with  intent  to  defraud  the  insurers,  it  is  not  necessary  to  aver  that  the 
barn  was  insured,  nor  to  prove  that  it  was  insured.  (Case  v.  Buckley,  15  Wend. 
327.)  And  generally  it  is  not  necessary  to  aver  facts  implied  by  the  alleged  de- 
famatory language.  If  one  say  of  J.  S.  "  He  hath  killed  his  cook,"  it  need  not 
be  averred  that  J.  S.  had  any  cook.  (Holt  v.  Taylor,  Sty.  66  ;  and  see  Billing  v 
Knight,  2  Bulst.  42.)  "  Thou  hast  forged  the  will  of  R." — it  need  not  be  averred 
that  R.  was  dead,  it  is  implied.  (Dorrel  v.  Jay,  Vent.  149.)  "He  hath  robbed 
the  Hockly  Butcher,"  need  not  be  averred  there  is  any  Hockly  Butcher,  for  if 
there  is  not  the  fault  is  the  greater.  (Smith  v.  Williams,  Comb.  247.)  See  post, 
§  315,  and  ante,  note  140. 

1630  15  &  16  Vict.  ch.  76;  Finlason's  Com.  Law  Proc.  Act,  137. 


396  PLEADING. 

the  plaintiff  is  the  person  referred  to,  by  providing  that  "  In 
an  action  for  libel  or  slander  it  shall  not  be  necessary  to  state 
in  the  complaint  any  extrinsic  facts  for  the  purpose  of  showing 
the  application  to  the  plaintiff  of  the  defamatory  matter  out  of 
which  the  cause  of  action  arose,  but  it  shall  be  sufficient  to 
state  generally  that  the  same  was  published  or  spoken  concern- 
ing the  plaintiff,  and  if  such  allegation  be  controverted  the 
plaintiff  shall  be  bound  to  establish,  on  trial,  that  it  was  so 
published  or  spoken." 1531  This  statute  merely  dispenses  with 
the  inducement  to  show  the  application  of  the  language  to  the 
plaintiff;  it  does  not  dispense  with  the  necessity  of  averments 
of  extrinsic  facts  to  show  the  meaning  of  ambiguous  language. 
And  in  New  York,  where  the  language  published  is  not  defam- 
atory on  its  face,  and  becomes  so  only  by  reference  to  extrinsic 
facts,  the  existence  of  those  facts  must  be  alleged  in  the  com- 
plaint.1532 

§  311.  The  matter  of  inducement,  when  necessary,  is  usually 
inserted  prior  to  the  statement  of  the  matter  published ;  but 
this,  although  the  more  orderly  arrangement,  is  not  essential ; 
so  that  the  necessary  inducement  is  to  be  found  in  the  com- 
plaint, its  location  seems  immaterial.1533 

§  312.  Where  there  are  several  counts  in  the  complaint, 
each  count  must  be  prefaced  with  appropriate  matter  of  in- 
ducement ;  but  where  the  inducement  to  one  count  is  appli- 
cable to  a  subsequent  count,  it  may  be  applied  to  such  subse- 
quent count  by  reference  thereto  and  without  repeating  it.1534 
In  slander,  the  first  count  charged  a  trial,  that  plaintiff  gave 
evidence,  and  that  the  words  were  spoken  of  and  concerning 
the  trial,  &c. ;    and  the  third  count  charged  that  the  words 

1631  Code  of  Pro.  §  164. 

1532  Pike  v.  Van  Wormer,  5  How.  Pra.  Rep.  1*71 ;  6  Id.  99  ;  Deas  v.  Short,  16 
Id.  322;  Fry  v.  Bennett,  5  Sandf.  54;  Blaisdell  v.  Raymond,  4  Abb.  Pra.  Rep. 
446;  Hallock  v.  Miller.  2  Barb.  630  ;  Carroll  v.  Wliite,  33  Barb.  615. 

1533  Brittain  v.  Allen,  2  Dev.  120;  3  Id.  167;  but  see  what  is  said  Caldwell  v. 
Raymond,  2  Abb.  Pra.  Rep.  193. 

1534  Loomu  v.  Levick,  3  Wend.  205 ;  and  see  Tindall  v.  Moore,  2  Wilson,  114. 


THE   COMPLAINT.  397 

therein  set  forth,  were  published  of  the  plaintiff,  and  of  and 
concerning  the  action  tried  as  aforesaid,  and  of  and  concerning 
the  evidence  of  the  plaintiff  given  on  the  said  trial  as  afore- 
said.    Held,  that  the  third  count  was  sufficient.1535 

§  312.  Where  inducement  is  necessary,  it  should  be  stated 
in  a  traversable  form.1536  Thus,  where  it  was  alleged,  by  way  of 
inducement,  that  reports  were  in  circulation  about  the  plaintiff, 
imputing  something  disgraceful,  to  which  the  publication  re- 
ferred, it  was  held  insufficient,  and  that  the  reports  themselves 
should  have  been  set  forth.1537  And  where  the  alleged  libel 
was  the  publication  of  a  notice  that  the  plaintiff  had  married 
E.  E.,  and  the  inducement  relied  upon  as  making  the  publica- 
tion actionable  was  that  E.  E.  was  a  common  prostitute,  but 
the  complaint  did  not  allege  this  fact  otherwise  than  as  follows : 
"  Married,  J.  W.  C."  (plaintiff  meaning)  "  to  E.  E."  (meaning 
a  public  prostitute  known  by  that  name),  "  that  E.  E.  is  a  pub- 
lic prostitute,  and  well  known  to  be  so,"  the  complaint  was,  on 
demurrer,  held  insufficient.1538 

§  313.  "Where  the  inducement  is  essential  to  the  sufficiency 
of  the  statement  of  the  cause  of  action,  and  where,  without 
the  facts  stated  as  inducement,  no  cause  of  action  would  be 
shown,  there  the  existence  or  non-existence  of  those  facts  is 
material,  and  of  course  may  be  controverted  by  the  defendant ; 
if  not  controverted  they  are  admitted,  and  need  not  be 
proved  ; 1539  if  controverted,  they  must  be  proved,  as  part  of 
the  plaintiff's  case.  But  where  the  inducement  is  not  essential 
to  the  sufficiency  of  the  statement  of  the  cause  of  action,  and 
where,  without  the  facts  stated  as  inducement,  a  cause  of  action 
can  be  shown,  then  the  inducement  is  mere  surplusage,  redun- 

1535  Crookshank  v.  Gray,  20  Johns.  344.     See  post,  §  347. 

1636  Caldwell  v.  Raymond,  2  Abb.  Pra.  Rep.  193.     And  see  Cass  v.  Anderson, 
33  Verm.  (4  Shaw)  182;   Carter  v.  Andrews,  16  Pick.  1. 

1637  Stone  v.  Cooper,  2  Denio,  293. 

1638  Caldwell  v.  Raymond,  2  Abb.  Pra.  Rep.  193. 

1639  Duke  v.  Jostling,  3  Dowl.  618  ;   Chalmers  v.  Shackell,  6  C.  &  P.  475. 


398  PLEADING. 

dant  matter ;  no  material  issue  can  be  raised  upon  it ;  it 
should  not  be  controverted,  and  if  controverted  need  not  be 
proved.1540  An  example  of  superfluous  inducement  is  the  pre- 
liminary panegyric  upon  the  plaintiff's  character,  with  which 
it  is  so  customary  to  preface  all  complaints  for  slander  or  libel. 
As  it  is  unnecessary  to  the  statement  of  a  cause  of  ac- 
tion to  aver  the  plaintiff's  innocence,  either  by  a  general 
averment  of  good  character,  or  a  general  averment  of  the 
falsity  of  the  matter  published,  or  by  any  particular  aver- 
ment, no  such  averment  can  be  made  the  subject  of  an 
issue.1541 

§  314.  Where  the  charge  was,  "  He  [plaintiff]  is  a  pitiful  fel- 
low and  not  able  to  pay  his  debts,  it  was  held  not  necessary  to 
aver,  by  way  of  inducement,  that  the  plaintiff  was  no  pitiful  fel- 
low and  was  able  to  pay  his  debts ; 1542  and  where  the  charge 
was  that  plaintiff  had  given  money  to  the  defendant  as  a  bribe, 
it  was  held,  on  motion  in  arrest  of  judgment,  not  necessary  for 
the  plaintiff  to  allege  that  he  did  not  give  the  money.1543 
Where  the  charge  was  of  forging  a  note,  the  plaintiff  averred, 
by  way  of  inducement,  that  the  note  was  genuine,  this  was 
held  to  be  immaterial,  equivalent  only  to  the  customary  allega- 
tion of  innocence,  and  did  not  require  to  be  proved ; 1544  so, 
where  the  charge  was  being  guilty  of  treason,  and  the  plaintiff" 
alleged  his  innocence,  it  was  held  that  he  did  not  thereby  im- 
pose on  himself  the  burden  of  proving  the  allegation.1545 

§  315.  It  will  be  convenient  here  to  refer  to  the  rule  of 
pleading  and  of  evidence,  that  where  the  defamatory  matter 
states  expressly  or  by  necessary  implication  the  existence  of 
certain  facts,  the  plaintiff  may  accept  the  statement  and  rely 

1540  Cox  v.  Thomason,  2  Cr.  <fe  J.  361. 

1641  Strachey's  Case,  Sty.  118. 

1642  Hooker  v.  Tucker,  Holt  R.  39. 

1643  Bendish  v.  Lindsey,  11  Mod.  194. 

1644  Harman  v.  Carrington,  8  Wend.  488. 
1545  Coleman  v.  Southwick,  9  Johns.  45. 


THE   COMPLAINT.  399 

upon  it,  without  being  obliged  either  to  allege  it  in  his  plead- 
ing or  to  establish  its  truth  by  evidence ; 1546  the  defendant  is 
estopped  from  denying  the  truth  of  his  own  charge.  Thus, 
where  the  words  of  a  lawyer  were,  "He  arresteth  without 
taking  out  writs,"  or  "  He  is  a  knave  in  his  practice,"  it  was  held 
that  these  words  implied  that  the  plaintiff  was  an  attorney,  and 
dispensed  with  any  inducement  of  that  fact.1547  And  in  slan- 
der for  charging  the  plaintiff  with  the  crime  of  murder,  it  is 
not  necessary  to  allege  as  inducement  the  death  of  the  person 
said  to  be  murdered  ; 1548  and  generally  it  is  unnecessary  to  show 
that  the  offence  charged  could  have  been  committed,1549  or  that 
the  plaintiff  was  physically  capable  of  committing  the  crime 
alleged  against  him.1550 

§  316.  As  the  plaintiff's  right  to  redress  depends  entirely 
upon  the  fact  that  the  defamatory  matter  concerned  him 
[§  131],  in  order  to  show  a  right  of  action,  that  fact  must  ap- 
pear on  the  face  of  the  complaint.  Where  the  language  pub- 
lished was  unequivocal  and  directly  referred  to  the  plaintiff, 
the  colloquium,  of  which  presently,  was  alone  sufficient  to 
show  this  fact.  But  where  the  language  was  ambiguous  in 
respect  to  the  person  to  whom  it  applied,  there,  formerly,  it 
was  necessary ;  and  where  the  common  law  system  of  pleading 
prevails,  it  still  is  necessary  to  state  as  inducement  the  circum- 
stances which  make  it  apparent  that  the  language  does  concern 

1546  Jones  v.  Stevens,  11  Price,  235;  ante,  note  1529,  and  post,  Evidence.  For 
the  words,  "  That  is  the  man  who  killed  my  husband,"  no  allegation  of  the  death 
of  the  husband  is  necessary.  {Button  v.  Haywood,  8  Mod.  24.)  "  You  hired  J.  S. 
to  forge  a  bond; "  no  allegation  that  any  bond  was  forged  is  necessary.  (Cro. 
Car.  337.) 

1541  Bell  v.  Thatcher,  Freem.  27*7.  And  so,  where  the  language  was,  "  He  is  a 
paltry  lawyer,  and  plays  with  both  hands."     (2  Rolle  Rep.  85.) 

1548  Tenney  v.  Clement,  10  N.  Hamp.  52;  and  see  Carter  v.  Andrews,  16  Pick. 
1;  Stone  v.  Clark,  21  Pick.  51;  Stallings  v.  Newman,  26  Ala.  300;  Eckert  v. 
Wilson,  10  S.  &  R.  44 ;  contra,  Chandler  v.  Holloway,  4  Porter,  17.  See  ante,  note 
447. 

1640  Colbert  v.  Caldwell,  3  Grant  (Penn.)  181 ;  but  see  Sawyer  v.  Hopkins,  9 
Shep.  268. 

1660  Chambers  v.  White,  2  Jones'  Law  (N.  C.)  383. 


400  PLEADING. 

the  plaintiff  ;1551  and  it  was  not  sufficient  to  aver  generally  that 
the  language  was  published  concerning  the  plaintiff.1552  By 
statute  the  rule  is  otherwise  in  New  York.1553 

§  317.  We  have  seen  that  the  actionable  quality  of  language 
is  sometimes  affected  by  the  circumstance  that  it  affects  the 
plaintiff  in  some  certain  capacity  [§§  132,  179]  ;  when  therefore 
the  plaintiff  claims  that  the  language  is  actionable,  because  it 
concerns  him  in  some  certain  capacity  or  occupation,  and  it 
does  not  upon  its  face  imply  that  he  is  in  such  capacity  or  occu- 
pation [§  315],  the  complaint  should  properly  allege  by  way  of 
inducement  that  he  tilled  such  capacity,  or  was  in,  or  carried 
on,  or  exercised  such  occupation  at  the  time  of  the  publication 
complained  of.  This  may  be  shown  by  an  averment  that  the 
plaintiff  is  of  such  a  trade,  or  has  carried  on  or  exercised  it  for 
divers  years,  without  adding  last  part,1554  because  a  person  once 

1661  Hale  v.  Blandy,  1  Y.  &  J.  480 ;  and  see  Brown  v.  Lamberton,  2  Binney,  34 ; 
Van  Vechtenv.  Hopkins,  5  Johns.  211;  Harper  v.  Delph,  3  Ind.  225;  Parker  v. 
Raymond,  3  Abb.  Pra.  R.  N.  S.  343. 

1652  The  State  v.  Henderson,  1  Rich.  179. 

1553  Ani6i  g  3io.  And  there  is  a  like  provision  in  the  law  of  Missouri. 
(Strieber  v.  Wensel,  19  Mis.  (4  Bennett)  513;  and  Wisconsin  (Van  Slykev.  Car- 
penter, 1  Wis.  173).  "  A  distinct  averment  in  regard  to  the  person  spoken  of,  and 
a  clear  reference  of  the  calumnious  words  to  that  person,  is  all  that  is  required." 
{Miller  v.  Parish,  8  Pick.  383.)  See  post,  §§  340,  341.  See  1  Stark.  Sland.  390. 
Of  what  is  there  stated  the  following  is  an  abridgment:  Where  the  plaintiff' s 
name  is  mentioned,  though  a  further  description  be  given,  the  general  averment 
is  sufficient  (Cro.  Eliz.  429)  without  alleging  that  the  further  description  applied 
to  the  plaintiff;  as  where  the  speaking  was  alleged  to  be  of  the  plaintiff,  and  the 
words  were,  "  T."  (meaning  the  plaintiff)  "is  thy  brother."  And  where  the 
words  were,  "  Captain  Nelson  is  a  thief,"  held  not  necessary  to  allege  that  plain- 
tiff was  a  captain  or  known  by  that  name.  Where  the  plaintiff  can  show  he  was 
intended,  he  can  maintain  the  action.  (Ante,  note  132.)  Thus,  for  the  words,  "The 
parson  of  Dale  is  a  thief,"  he  who  was  parson  of  Dale  at  the  time  may  sue.  (3 
Bulst.  326.)  And  where  the  defendant  spoke  of  that  murderous  knave  Stough- 
ton,  held  that  one  Thomas  Stoughton  might  sue.  (Sheppard,  Action  of  Slander, 
59.) 

1554  Tuthillv.  Milton,  Yelv.  159;  Cro.  Jac.  222;  and  see  2  Rolle  R.  84;  Dodd 
V.  Robinson,  AU.  63 ;  Collis  v.  Malin,  Cro.  Car.  282 ;  Beaumond  v.  Hastings,  Cro. 
Jac.  240. 


THE   COMPLAINT.  401 

in  any  certain  occupation  is  presumed  to  continue  therein. 
[§  189.]  But  where  the  language  affects  the  plaintiff  in  an 
office  he  holds  during  pleasure,  a  different  rule,  it  is  said,  pre- 
vails, and  the  plaintiff's  continuance  in  office  must  be  al- 
leged.1555 The  complaint  need  not  allege  that  the  plaintiff 
gains  his  livelihood  by  his  occupation  [§  182],  nor  that  the 
plaintiff  has  qualified  himself  for  the  office  or  employment  in 
which  he  is  defamed.  Thus,  where  the  alleged  libel  concerned 
a  candidate  to  serve  in  Parliament,  it  was  held  that  the  declara- 
tion need  not  set  out  the  writ  to  show  the  plaintiff  was  such 
candidate.1556  But  the  occupation  of  the  plaintiff  should  be 
described  in  apt  terms.  Thus,  in  an  action  by  a  barrister,  it 
was  held  that  he  should  allege  he  was  Tiorao  consiliarius  et  in 
jure  peritus,  and  that  it  was  not  sufficient  to  allege  he  was  eru- 
ditus  in  lege.155"'  "  The  declaration  ought  not  merely  to  state 
that  such  scandalous  conduct  was  imputed  to  the  plaintiff  in  his 
profession,  but  also  to  set  forth  in  what  manner  it  was  con- 
nected by  the  speaker  with  that  profession."1558 

§  318.  Where  the  language  is  actionable  of  the  plaintiff  as 
an  individual,  then,  although  it  may  also  affect  him  in  some 
occupation,  it  is  not  necessary  to  allege  as  inducement  that 
the  plaintiff  exercised  such  occupation  ;  and  even  if  alleged,  it 
need  not  be  proved,  because  there  is  a  cause  of  action  without 
it.  [§  179.] 1559  Thus,  in  an  action  for  setting  up  near  plain- 
tiff's house  an  inscription  insinuating  that  it  was  a  house  of  ill- 
fame,  &c,  the  declaration  alleged  that  the  plaintiff  carried  on 
the  business  of  a  retailer  of  wines ;  but  the  court  held,  that  as 
the  inscription  was  not  alleged  to  have  been  published  concern- 

1666  Tuthill  v.  Milton,  Yelv.  159;  Cro.  Jac.  222. 

1566  Harwood  v.  Astley,  1  New  R.  4*7 ;  and  post,  §  320. 

15"  1  Stark.  Slan.  402.  A  complaint  setting  forth  that  the  plaintiff  was  "  en- 
gaged in  the  wooden-ware  business,"  sufficiently  describes  his  employment  as 
that  of  a  buyer  and  seller  of  wooden-ware.     (Carpenter  v.  Dennis,  3  Sandf.  305.) 

1668  Denman,  C.  J.,  Ayre  v.  Craven,  2  AdoL  <fc  El.  2 ;  4  Nev.  &  M.  220  and  see 
Alexander  v.  Angle,  1  Cromp.  <fc  J.  143. 

1669  Gage  v.  Robinson  12  Ohio  250 

26 


402  PLEADING. 

ing  the  plaintiff  as  a  retailer  of  wine,  it  might  be  struck  out  of 
the  declaration,  and  need  not  be  proved.1560  And  in  like  man- 
ner, if  the  plaintiff  has  two  trades  and  both  are  alleged  as  in- 
ducement, and  the  language  is  actionable  as  affecting  the  plain- 
tiff in  one  of  them,  proof  of  his  exercising  that  one  trade  will 
suffice.1561 

§  319.  Too  great  minuteness  in  matter  of  inducement  is  to 
be  avoided,  because  in  general  the  proof  must  be  co-extensive 
with  the  allegation  ;  as  where  the  plaintiff  alleged  that  he  was 
an  attorney,  that  he  conducted  a  particular  suit,  and  afterwards 
alleged  that  the  defamatory  matter  was  concerning  his  conduct 
in  that  suit,  it  was  held  that  he  must  prove  the  existence  of  that 
suit.1562  And  in  an  action  for  a  libel  on  a  constable,  respecting 
his  conduct  in  the  apprehension  of  persons  stealing  a  dead 
body,  and  part  of  the  conduct  stated  in  the  first  count  was  that 
of  carrying  the  dead  body  to  Surgeon's  Hall,  and  the  second 
count  spoke  of  "  his  conduct  respecting  the  said  dead  body," 
the  court  held  that  it  was  necessary  in  both  counts  to  prove  the 
introductory  allegation  that  the  body  was  carried  to  Surgeons' 
Hall;  for  the  words,  "  the  said  body,"  in  the  second  count,  in- 
corporated all  the  descriptive  circumstances  introduced  in  the 
first ;  the  plaintiff  need  not  have  burthened  himself  with  the 
proof  of  such  a  fact ;  but  the  libel  being  stated  of  and  concern- 
ing his  conduct  as  to  the  dead  body,  it  became  most  important 
to  prove  that  part  of  his  conduct.1563  But  it  said,1564  "  The  omis- 
sion to  prove  facts  unnecessarily  alleged  will  not  be  fatal  unless 
by  the  form  and  mode  of  pleading  they  have  been  made  de- 
scriptive of  that  which  is  material." 

§  320.  It  need  not  be  alleged  that  the  plaintiff  was  legally 

1560  Spall  v.  Massey,  2  Stark.  R.  559. 

1561  Figgins  v.  Cogswell,  cited  Chalmers  v.  Shackell,  3  C.  <fc  P.  477;  3  M.  &  S. 
369.  See  post,  n.  1674.  But  where  the  plaintiff  alleged  that  he  was  proprietor 
and  editor  of  a  newspaper,  it  was  held  iD  sufficient  for  him  to  prove  himself  pro- 
prietor only.     (Heriot  v.  Stewart,  4  Esp,  437.) 

1662  Parry  v.  Collis,  5  Esp.  339. 

1663  Teesdale  v.  Clement,  1  Chit.  603. 
3564  1  Stark.  Sland.  407. 


THE  COMPLAINT.  403 

qualified  or  licensed  to  exercise  the  calling  in  which  the  lan- 
guage affects  him  ;  if  he  was  not  so  qualified  or  licensed,  it  is 
matter  of  defence  to  come  from  the  defendant.  In  an  action 
for  slander  the  plaintiff  alleged  that  he  was  in  medicinis  doc- 
tor, and  it  was  moved  in  arrest  of  judgment  that  he  did  not  show 
he  was  licensed,  but  adjudged  for  the  plaintiff.1565  And  so  in 
an  action  by  a  physician  for  words  of  him  in  his  profession,  it 
is  sufficient  for  him  to  aver  that  he  had  used  and  exercised  the 
profession  of  a  physician ;  but  where  a  plaintiff  in  such  a  case 
went  further,  and  averred  that  he  was  a  physician,  and  had 
duly  taken  the  degree  of  a  doctor  of  physic,  it  was  held  that 
he  must  prove  his  degree  as  stated.1566 

§  321.  In  a  complaint  founded  upon  a  charge  of  false 
swearing  as  a  witness,  such  a  charge  not  being  actionable  per 
se  [§  171],  to  show  a  cause  of  action  there  should  be  an  induce- 
ment of  the  pendency  of  a  suit  or  judicial  proceeding,  in 
which  the  plaintiff*  was  examined  as  a  witness,  and  a  colloqui- 
um that  the  charge  was  concerning  the  plaintiff  as  such  wit- 
ness.1567 If  there  were  several  suits  between  the  same  parties, 
tried  on  the  same  day,  it  is  not  necessary,  it  seems,  to  distin- 
guish in  which  suit  the  false  swearing  occurred.1568  And  where 
the  suit  or  proceeding  was  before  a  court  or  officer  of  limited 
jurisdiction,  it  must  be  further  shown  that  such  court  or  officer 

1566  Dr.  BrownWs  Case,  Mar.  116,  pi.  3;  and  ante,  §§  182,  183. 

1666  Moises  v.  Thornton,  8  T.  R.  303. 

1607  Stone  v.  Clark,  21  Pick.  51 ;  Gale  v.  Hays,  3  Strobh.  452;  Sharp  v.  Wil- 
hite,  2  Humph.  434 ;  Williams  v.  Spears,  11  Ala.  138;  and  semble  it  should  be 
alleged  that  defendant  intended  to  impute  a  charge  of  perjury.  ( Wood  v.  Scott, 
13  Verm.  42;  Sanderson  v.  Hubbard,  14  Id.  462.)  It  is  not  necessary  to  state 
what  the  witness  testified.  ( Whitaker  v.  Carter,  4  1  red.  461.)  A  complaint  for 
slander  set  out  that  in  a  suit  before  a  justice,  P.  W.  was  a  witness  to  material 
matter  ;  that  defendant,  in  a  conversation  concerning  said  trial  and  concerning  the 
plaintiff,  being  guilty  of  subornation  of  perjury,  published,  <fec,  the  words,  "P.  F. 
swore  to  a  lie,  and  you  (plaintiff)  hired  him."  It  was  objected  to  the  complaint, 
that  it  did  not  allege  that  the  conversation  was  of  and  concerning  the  testimony 
of  P.  F.  on  the  trial.  Held,  after  verdict,  the  complaint  was  good.  {Shinier  v. 
Bronnenburg,  18  Ind.  363.) 

™»  Harris  v.  Purdy,  1  Stew.  231. 


404r  PLEADING. 

had  jurisdiction  of  the  suit  or  proceeding  ;  an  averment  that 
the  justice  then  and  there  had  jurisdiction  of  the  action,  was 
held  sufficient  without  setting  forth  the  facts  which  gave  the 
jurisdiction.1569  The  plaintiff  need  not  show  that  the  justice 
was  duly  commissioned.1570  A  declaration  which  alleged  that 
the  words  were  spoken  "  whilst  the  plaintiff  was  giving  testi- 
mony as  a  witness  under  the  solemnities  of  an  oath,  before  an 
acting  justice  of  the  peace,"1571  and  a  declaration  which  alleged 
that  the  plaintiff  was,  at  the  instance  of  the  defendant,  exam- 
ined on  oath  administered  by  a  justice,  according  to  law,  as  a 
witness  for  the  defendant,  were  held  sufficiently  to  allege  juris- 
diction.1572 "  Squire  H."  was  held  a  sufficient  description  of 
P.  H.,  esquire,  a  justice  of  the  peace.1573 

§  322.  It  should  be  alleged  that  the  testimony  was  material 
to  the  point  in  issue,  but  it  is  not  necessary  to  show  to  what 
particular  degree  the  point,  in  respect  to  which  a  party  is 
charged  with  false  swearing,  was  material  to  the.  issue.  If  it 
goes  to  prove  a  material  circumstance  or  link  in  the  chain  of 
evidence,  it  is  sufficient.1574     And  it  has  been  said  that  an  aver- 

1669  Sanford  v.  Gaddis,  13  111.  329. 

1610  Pugh  v.  Neal,  4  Jones'  Law  (N.  C),  36*7.  It  was  held  not  necessary  to 
allege  either  that  the  justice  had  jurisdiction  or  that  the  testimony  was  material. 
(Dalrymple  v.  Lofton,  2  M'Mullan,  112.)  But  as  to  the  necessity  of  alleging 
jurisdiction,  see  Shellenbarger  v.  Norris,  2  Carter  (Ind.),  285  ;  Jones  v.  Marrs,  11 
Humph.  214;  Chapman  v.  Smith,  13  Johns.  78;  Bonner  v.  McPhail,  31  Barb. 
106 ;   Cannon  v.  Phillips,  2  Sneed  (Tenn.)  185. 

Where  the  charge  is  that  the  plaintiff  committed  perjury,  that  implies  a  false 
swearing  before  a  competent  tribunal,  and  jurisdiction  need  not  be  alleged. 
(Green  v.  Long,  2  Cai.  91.)  Where  the  charge  is  perjury  committed  in  a  foreign 
state,  it  must  be  averred  that  by  the  laws  of  such  state  perjury  is  an  offence  to 
which  is  annexed  an  infamous  punishment.  (Sparrow  v.  Maynard,  8  Jones'  Law 
(N.  C),  195;  and  see  ante,  note  350.) 

1611  Lewis  v.  Black,  27  Miss.  (5  Cush.)  425. 

1572  Shellenbarger  v.  Norris,  2  Carter  (Ind.),  285. 

1673  Call  v.  Foresman,  5  Watts,  331 ;  and  see  ante,  note  220;  "N.  T.,  esquire, 
aforesaid,"  held  sufficient  description  of  a  justice  of  the  peace.  (Canterbury  v. 
Mil,  4  Stew.  &  Port.  224.) 

1614  Hutchins  v.  Blood,  25  Wend.  413 ;  and  see  Witcher  v.  Richmond,  8  Humph. 
473. 


THE   COMPLAINT.  405 

ment  of  the  materiality  of  the  evidence  may  be  altogether 
omitted  ; 1575  at  least  the  absence  of  such  an  allegation  will  be 
cured  by  verdict.1576  It  is  not  necessary  to  allege  that  the 
justice  had  authority  to  administer  the  oath.1577  But  it  should 
be  alleged  that  the  plaintiff  was  legally  sworn.1578  The  de- 
fendant cannot  show  as  a  defence  that  the  plaintiff  was  not  a 
competent  witness.1579  The  absence  of  allegations  of  jurisdic- 
tion in  the  justice,  or  materiality  of  the  testimony,  may  be 
cured  by  a,plea  of  justification,1580  or  by  a  verdict.1581 

§  323.  The  Colloquium. — Properly  the  colloquium  or  alle- 
gation of  a  discourse  is  the  allegation  that  the  language  pub- 
lished was  concerning  the  plaintiff,,  or  concerning  the  plaintiff 
and  his  affairs,  or  concerning  the  plaintiff  and  the  facts  alleged 
as  inducement.  But  the  term  colloquium  is  frequently  em- 
ployed as  synonymous  with  inducement,  or  to  signify  the  in- 
ducement and  the  colloquium  properly  so  called.  As  hereto- 
fore stated  [§  316],  it  must  be  shown  on  the  face  of  the  com- 
plaint that  the  language  was  published  concerning  the  plaintiff, 
and  the  proper  mode  of  doing  this  is  by  a  direct  averment  that 
the  publication  was  "  of  and  concerning  the  plaintiff."     This 

1575  Wetsel  v.  Lennen,  13  Ind.  535 ;   Cannon  v.  Phillips,  2  Sneed,  185. 

1676  Niven  v.  Munn,  13  Johns.  48.  In  slander  for  the  charge  of  perjury,  the 
materiality  of  the  alleged  false  testimony  is  for  the  court  to  determine,  and  if 
left  to  the  jury  it  is  error.  (Steinman  v.  Mc  Williams,  6  Barr,  170 ;  Power  v. 
Price,  12  Wend.  500;  affirmed  16  Wend.  450.)  Or  ground  for  a  new  trial.  {Dal- 
rymple  v.  Lofton,  2  M'Mullan,  112.) 

1577  Sanford  v.  Gaddis,  13  111.  329  ;  but  see  Jones  v.  Mam,  11  Humph.  214. 

1S7b  Sanderson  v.  Hubbard,  14  Verm.  462. 

1676  Harris  v.  Purdy,  1  Stew.  231.  A  declaration  in  slander,  charging  the 
words  spoken  as  follows:  "He  (meaning  plaintiff)  has  sworn  falsely,"  <fcc., 
"  against  me  (meaning  defendant),  and  he  (meaning  defendant)  could  prove  it," 
was  held  bad  after  verdict;  by  "  he  "  in  the  latter  clause,  as  pleaded,  the  defend- 
ant could  not  have  meant  himself.  {Bowdish  v.  Peckham,  1  Chip.  146.)  But  see 
post,  note  1705. 

1580  Witcher  v.  Richmond,  8  Humph.  473 ;  Atlebury  v.  Powell,  29  Miss.  (8 
Jones)  429;  Saunderson  v.  Hubbard,  14  Verm.  462. 

1681  Palmer  v.  Hunter,  8  Mis.  512  ;  Morgan  v.  Livingston,  2  Rich.  573;  Niven 
v.  Munn,  13  Johns.  48;  but  see  Wood  v.  Scott,  13  Verm.  42. 


406  PLEADING. 

averment  may,  however,  be  supplied  by  any  equivalent  allega- 
tion, and  may  be  altogether  dispensed  with  where  it  appears 
otherwise  with  sufficient  certainty  on  the  face  of  the  complaint, 
that  the  publication  was  in  fact  concerning  the  plaintiff.1582 
And  although,  in  actions  for  slander  and  libel,  inducement  may 
be  necessary  to  explain  the  matter  alleged  to  be  libellous,  it  is 
enough  to  state  in  the  declaration  that  the  publication  was  "  of 
and  concerning  "  the  plaintiff,  without  also  stating  that  it  was 

1562  It  is  sufficient  to  aver  substantially  that  the  words  were  spoken  of  plain- 
tiff;  an  express  averment  of  the  fact  is  not  necessary.  (Brown  v.  Lamherlon,  2 
Binn.  34 ;  Brashen  v.  Shepherd,  Ky.  Dec.  294 ;  Nestle  v.  Van  Slyke,  2  Hill,  282 ; 
but  see  Titus  v.  Follett.  2  Hill,  318;  Tyler  v.  Tillottson,  2  Hill,  508;  Cave  v. 
Shelor,  2  Munf.  193 ;  Harper  v.  Delp,  3  Ind.  225 ;  Rex  v.  Marsden,  4  M.  «fc  S. 
164;  Baldwin  v.  Hildreth,  14  Gray  (Mass.)  221.)  On  demurrer,  where  the  words 
did  not  name  the  plaintiff,  the  omission  of  a  colloquium  of  and  concerning  the 
plaintiff  was  held  fatal,  and  not  aided  by  the  innuendoes.  {Milligan  v.  Thorn,  6 
Wend.  412;  and  see  Church  v.  Bridgman,  6  Miss.  190.)  Nor  by  the  verdict,  the 
language  being  in  the  third  person.  (Sayre  v.  Jewett,  12  Wend.  135.)  If  there 
be  a  colloquium  sufficient  to  point  the  application  of  the  words  to  the  plaintiff,  if 
spoken  maliciously,  he  must  have  judgment.  (Lindsey  v.  Smith,  V  Johns.  359.) 
Where  actionable  words  are  spoken  to  a  plaintiff,  it  is  sufficient  to  allege  a  dis- 
course with  him,  without  an  averment  that  the  words  were  concerning  the  plain- 
tiff; but  where  the  words  are  in  the  third  person,  as,  "  He  is  a  thief,"  there,  al- 
though a  discourse  of  the  plaintiff  is  alleged,  it  must  also  be  alleged  that  the 
words  were  concerning  the  plaintiff.  And  it  is  not  sufficient  in  such  a  case  to 
connect  the  words  with  the  plaintiff  by  an  innuendo.  (1  Stark.  Sland.  384.) 
But  where  a  discourse  of  the  plaintiff  is  laid,  and  there  is  an  innuendo  of  the 
plaintiff,  it  seems  that  the  want  of  a  direct  averment  that  the  words  were  con- 
cerning the  plaintiff  must  be  pointed  out  by  special  demurrer  [motion  to  make 
certain] ;  but  if  no  discourse  concerning  the  plaintiff  is  alleged,  then  the  want  of 
an  allegation  that  the  words  concerned  him  would  be  a  defect  in  substance.  (Id.  ; 
Skutt  v.  Hawkins,  1  Rolle  It.  244.)  If  a  plaintiff  has  omitted,  in  his  declaration, 
to  state  that  the  libel  was  spoken  of  himself,  he  may  supply  the  same  by  parol 
evidence.  (Newbrauyh  v.  Curry,  Wright,  511.)  Where  A.  says  of  B.  &  C,  "you 
have  committed  such  an  offence,"  though  B.  &  C.  may  have  separate  actions,  the 
words  must  be  alleged  to  have  been  spoken  of  both.  (Cro.  Car.  512.)  Where 
the  declaration  states  a  colloquium  with  G.,  of  and  concerning  the  children  of  G., 
and  of  and  concerning  C,  one  of  the  children  of  G.,  and  the  plaintiff  in  the  suit, 
in  particular,  and  that  the  defendant  said,  "  Your  children  are  thieves,  and  I  can 
prove  it,"  the  colloquium  conclusively  points  the  words,  and  designates  the  plain- 
tiff as  one  of  the  children  intended.  And  a  colloquium  is  sufficient  to  give*  ap- 
plication to  words  still  more  indefinite.  (Gidney  v.  Blake,  11  Johns.  54 ;  but  see 
what  is  said  1  Stark.  Sland.  385.) 


THE  COMPLAINT.  407 

"  of  and  concerning  "  such  matter,1583  or  of  and  concerning  the 
plaintiff  in  the  occupation  alleged  in  the  inducement.1584 
Where  the  declaration  alleged  that  the  defendant  published  a 
libel  of  and  concerning  the  plaintiff,  containing,  &c,  the  false 
libellous  matters  following  (without  saying  of  and  concerning 
the  plaintiff );  held,  in  error,  that  for  want  of  an  averment 
that  the  particular  matter  was  of  and  concerning  the  plaintiff 
and  there  being  no  innuendo  that  such  matter  related  to  him, 
the  declaration  was  bad,  and  a  venire  de  novo  was  awarded.1585 
A  declaration  which  alleged  that  the  plaintiffs  were  traders 
under  the  firm  of  T.  &  Co.,  and  averring  that,  in  a  discourse 
of  and  concerning  them,  their  circumstances  and  business,  the 
defendant  said,  "  T.  &  Co.  are  down,"  &c'.,  without  repeating 
that  this  was  said  of  and  concerning  the  plaintiffs,  was  held 
bad  on  special  demurrer,  although  good  in  substance.1586 

§  324.  A  publication  by  the  defendant  must  be  alleged. 
The  publication  need  not  be  set  forth  in  any  technical  form  of 
words.1587  But  it  must  be  alleged  positively,  and  not  by  way 
of  recital ; 1588  and,  therefore,  a  declaration  which  commenced, 
"  For  that  whereas  "  the  defendant  intending,  &c,  spoke,  &c, 
was  held  bad  on  special  demurrer.15S9  In  slander  for  Eno-lish 
words  it  should  be  alleged  that  the  defendant  spoke  the  words 
in  the  presence  and  hearing  of  divers  persons,1590  or  of  certain 


1583  Q>Brien  v.  Clement,  4  D.  <fe  L,  563 ;  Gfutsole  v.  Mathers,  lM,df.  495 ; 
Shimer  v.  Bronncnburg,  18  Ind.  363. 

1584  Wakley  v.  Healey,  18  I^aw  Jour.  Rep.  241,  C.  P. ;  contra,  see  Barnes  v. 
Trundy,  31  Maine  (1  Red.),  321. 

1586  Clement  v.  Fisher,  7  B.  &  Cr.  459 ;  1  M.  &  Ry.  281. 

1588  Titus  v.  Follett,  2  Hill,  318 ;  and  see  Taylor  v.  The  State,  4  Geo.  14. 

1587  Baldwin  v.  Elphhistone,  2  W.  Black.  1037,  note  104,  ante.  It  was  hold 
sufficient  to  allege  that  the  defendant  was  the  proprietor  of  the  newspaper  in 
which  the  alleged  libel  was  published.     {Hunt  v.  Bennett,  19  N.  Y.  173.) 

1568  Donage  v.  Rankin,  4  Munf.  261. 

1689  Brown  v.  Thurlow,  4  D.  &  L.  301 ;  16  M.  &  W.  36;  Coffin  v.  Coffin,  % 
Mass.  358 ;   Houghton  v.  Davenport,  23  Pick.  235. 

1500  To  allege  a  speaking  merely,  is  not  sufficient.  (Style,  70 ;  1  Stark.  Sland. 
360.)  In  Indiana,  by  statute  it  is  sufficient  merely  to  allege  the  speaking.  {Qi- 
rardv.  Risk,  11  Ind.  156.) 


408  PLEADING. 

persons,  naming  them,1591  or  of  certain  persons  named  and 
divers  others,  not  naming  the  others.1592  Published  ex  vi  ter- 
mini, imports  a  speaking  in  the  presence  and  hearing  of  a 
third  party  ; 1593  and,  therefore,  to  allege  that  the  defendant 
published  the  words,  is  sufficient  without  averring  specially 
the  presence  of  others.1594  And  an  allegation  that  the  words 
were  spoken  would  be  sufficient,  without  stating  the  presence 
of  any  third  person,  if  accompanied  by  any  averment  which 
necessarily  implies  a  publication  to  a  third  person, — as  that  the 
defendant  palirn  et publice promulgant  de  querente.im  In  the 
case  of  English  words,  it  is  not  necessary  to  allege  that  the 
persons  present  either  heard  or  understood  what  was  said  ;  for 
until  the  contrary  is  made  to  appear,  it  will  be  intended  that 
those  present  both  heard  and  understood  the  words ;  but  in  the 
case  of  a  publication  of  foreign  words,  it  must  be  alleged  that 
the  persons  present  understood  them.1596 

§  325.  Where  the  publication  was  made  in  writing,  pub- 
lished is  the  proper  and  technical  term  by  which  to  allege  the 
publication,  and  this  without  reference  to  the  precise  de- 
gree in  which  the  defendant  was  instrumental  to  the  publica- 
tion.1597 But  any  equivalent  allegation  will  suffice.  Where  it 
was  alleged  that  the  defendant  printed  and  caused  to  be  printed 
in  the  St.  James'  Chronicle,  that  was  held  sufficient,1598  and  so 
was  the  allegation  that  the  defendant  "  did  publish  and  cause  and 
procure  to  be  published,"  a  certain  libel  addressed  to  the  plain- 
tiff,1599 but  where  the  allegation  was  that  the  defendant  scripsit, 
i , 

1591  Burbank  v.  Horn,  39  Maine  (4  Heath),  233 ;  ante,  note  106.    f 

1692  Bradshaw  v.  Perdue,  12  Geo.  510;    Ware  v.  Cartledge,  24  Ala.. 622. 

3593  Duel  v.  Agan,  1  Code  Rep.  134;   note  106,  ante. 

1694  Barton  v.  Barton,  3  Iowa,  316. 

1696  Taylor  v.  How,  Cro.  Eliz.  861.  Prior  to  the  statute  2d  Geo.  II.  ch.  14, 
pleadings  in  the  courts  of  England  were  in  Latin,  which  will  explain  why  the 
quotations  from  the  pleadings  in  the  early  decisions  are  in  Latin. 

1696  Wormuth  v.  Cramer,  3  Wend.  394 ;  1  Stark.  Slan.  360 ;  Cro.  Eliz.  396,  480, 
865;  Cro.  Jac.  39;  Cro.  Car.  199;  Noy,  57;  Golds.  119;  Zergy.  Ort,  3  Chandler, 
26  ;  and  see  ante,  notes  97,  98. 

1697  Lamb's  Case,  9  Rep. ;  1  Stark.  Sland.  359. 
1B*  Baldwin  v.  Elphinstone,  2  W.  Black.  1037. 

1699  Waisted  v.  Holman,  2  Hall,  172.     But  to  allege  that  defendant  composed 


THE    COMPLAINT.  409 

fecit,  et  pvblicavit  seu  scribi  fecit  et  publicari  causavit,  it  was 
held  to  be  insufficient,  and  judgment  was  arrested  on  account 
of  the  uncertainty  of  the  disjunctive  charge.1600  To  allege  that 
the  defendant  is  proprietor  of  a  certain  newspaper  named,  and 
that  the  libel  was  published  in  such  paper,  was  held  a  sufficient 
averment  of  a  publication  by  the  defendant.1601  But  to  allege 
that  defendant  sent  a  letter  to  plaintiff  which  was  received  and 
read  by  him,  does  not  show  a  sufficient  publication.1602  If  a  de- 
famatory writing  is  shown  to  have  been  put  in  a  situation  in 
which  it  might  have  been  read,  it  is  unnecessary  to  allege  that 
it  was  in  fact  seen  or  read.1603 

§  326.  The  place  of  publication  may  be  alleged  with  a  videl- 
icet.1604.   It  is  not  material  and  need  not  be  proved  as  laid.1605 

§  327.  The  time  of  speaking  the  words  is  not  material.1606 
In  one  case,  it  was  held  that  the  words  might  be  laid  with  a 
continuando,nm  but  this  was  denied  on  the  ground  that  words 
spoken  at  one  time  constitute  one  cause  of  action,  and  words 
spoken  at  another  time  constitute  another  cause  of  action.1608 
The  continuando,  however,  was  held  to  be  surplusage,  and  not 
ground  for  special  demurrer.1609  An  allegation,  "  and  further, 
that  defendant,  on  divers  days  and  times,  between  that  clay  and 
the  commencement  of  this  action,  spoke  the  same  words," 
was  struck  out  as  redundant.1610 


■wrote,  and  delivered  a  certain  libel  addressed  to  the  plaintiff,  was  held  insuffi- 
cient.   (Id.) 

1600  Rex  v.  Brereton,  8  Mod.  328. 

1601  Hunt  v.  Bennett,  4  E.  D.  Smith,  64*7,  affirmed  19  N.  Y.  193. 

1602  Lylev.  Clason,  1  Cai.  581. 

1608  Giles  v.  The  State,  6  Geo.  276  ;  note  103,  ante. 

1604  Burbank  v.  Horn,  39  Maine  (4  Heath),  233. 

1605  Jeffries  v.  Buncombe,  11  East,  226  ;  ante,  §  110. 

1808  Potter  v.   Thompson,\%  Barb.   87;   Hosley  v.  Brooks,  20  Dl.  116;    but 
see  ante,  §  109. 

1607  Burbank  v.  Horn,  39  Maine  (4  Heath),  233. 

1608  Swinney  v.  Nave,  22  Ind.  178 ;  ante,  §  113. 

1609  Cummins  v.  Butler,  3  Blackf.  190. 

1810  Gray  v.  Nellis,  6  How.  Pra.  Rep.  290. 


410  PLEADING. 

§  328.  It  should  appear  on  the  face  of  the  complaint  by 
some  appropriate  averment,  that  the  publication  was   made 
without  legal  excuse.     Ex  maliiia  in  its  legal  sense,  imports  a 
publication  that  is  false,  and  made  without  legal  excuse  ;1611  an 
averment  that  the  publication  was  made  with  malice  or  mali- 
ciously has  ever  been  and  is  still  the  customary  averment ;  but 
any  form  of  words  from  which  malice  [absence  of  excuse]  can 
be  inferred,  as  that  the  publication  was  made  falsely  or  wrong- 
fully, will  suffice.1612    .Neither  the  term  malice,1613  nor  falsely, 
nor  wrongfully,  is  essential,1614  at  least  after  verdict.1615     A  de- 
claration which  charged  the  publication  to  be  "  malicious,  inju- 
rious, and  unlawful,"  was  held  sufficient.1616     Where  it  appeared 
on  the  face  of  the  declaration  that  the  defamatory  matter  was 
published  in  an  affidavit  in  a  proceeding  in  an  action,  and  was 
pertinent  to  the  matter  in  hand,  held  that  the  declaration  was 
demurrable,  because,  notwithstanding  the  allegation  that  the 
publication  was  false  and  malicious,  it  appeared  on  the  face  of 
the  declaration  that  the  publication  was  a  privileged  one.1617 

§  329.  The  complaint  should  set  out,  and  purport  to  set 
out,  the  very  words  published.1618     The  proper  term  by  which 

1011  Johnson  v.  Sutton,  1  T.  R.  439  ;  Cro.  Car.  271. 

1612  Moor,  459;  Owen,  451 ;  Noy,  35  ;  ante,  note  if. 

1613  Opdykev.  Weed,  18  Abb.  Pra.  Rep.  223;  Viele  v.  Gray,  10  Id.  6;  ante, 
note  86. 

1614  Style,  392.  An  allegation  that  the  publication  was  a  libel,  held  equivalent 
to  an  allegation  that  it  was  false  and  malicious.     {Hunt  v.  Bennett,  19  N.  Y.  176.) 

1615  2  Saund.  242  ;    White  v.  Nichols,  3  How.  IT.  S.  Rep.  266,  284. 

1616  Rowe  v.  Roach,  1  Mau.  &  Sel.  304. 

1617  Garr  v.  Selden,  4  N.  Y.  91. 

1618  Finnerty  v.  Barker,  7  N.  Y.  Legal  Observer,  317;  Sullivan  v.  White,  6 
Irish  Law  Rep.  40 ;  Whitaker  v.  Freeman,  1  Dev.  271 ;  Lee  v.  Kane,  6  Gray  (Mass.), 
495;  Taylor  v.  Moran,  4  Mef.  (Ky.)  127;  Commonwealth  v.  Wright,  1  Cush.  46. 
A  new  trial  was  granted  because  the  words  published  were  not  set  forth  in  the 
complaint  literally.  (  Walsh  v.  The  State,  2  McCord,  248.)  Certain  States  pro- 
vide by  statute  what  words  shall  be  actionable.  (§  153.)  It  is  held  that  acts  de- 
claring what  words  are  actionable  are  public  laws,  of  which  courts  are  bound  to 
take  notice,  and  the  complaint  or  declaration  need  not  recite  or  refer  to  tile  stat- 


THE    COMPLAINT.  411 

to  indicate  that  the  very  words  are  set  forth  is  tenor.1619  "  Tenor 
and  effect "  is  now  held  to  be  sufficient,  but  there  is  a  decision 
to  the  contrary.1620  It  is  not  sufficient  to  allege  that  words  were 
published  to  the  effect  following,1621  or  in  substance  as  follows,1622 
or  purporting,1623  or  that  the  words  were  in  substance  as  follows, 
or  according  to  the  purport  and  effect  following,  or  in  manner 
and  form  following,1624  or  that  the  words  were  of  a  certain  tenor, 

ute  (Sanford  v.  Gaddis,  13  111.  329  ;  Mam  v.  Badger,  23  111.  498),  except  by  alleging 
that  the  words  were  published  against  the  form  of  the  statute  in  such  case  provided 
{Terry  v.  Bright,  4  Md.  430);  but  the  absence  of  this  allegation  will  be  cured  by 
verdict.  (  Wilcox  v.  Webb,  1  Blackf.  258.)  As  to  declaring  upon  the  statutes  of 
Virginia  and  Georgia,  see  Moseley  v.  Moss,  6  Gratt.  534;  Holcombe  v.  Roberts,  19 
Geo.  588;  Hanks  v.  Palton,  18  Geo.  52. 

1619  Commonwealth  v.  Wright,  1  Cush.  46  ;  Wright  v.  Clements,  3  B.  &  Aid.  503. 
To  allege  "  a  certain  receipt  for  money,  as  follows,  that  is  to  say,"  was  held 
equivalent  to  an  allegation  "  according  to  the  tenor  following,  or  in  the  words  and 
figures  following,  that  is  to  say."  (Bex  v.  Powell,  1  Leach  C.  C.  77, 4th  ed. ;  2  East 
P.  C.  976 ;  2  Wm.  Black.  R.  787.)  In  a  declaration  for  slander  of  plaintiff  in  his 
trade,  a  count  alleging  that  the  defendant,  in  a  certain  discourse  in  the  presence 
and  hearing  of  divers  subjects,  falsely  and  maliciousty  charged  the  plaintiff  of  being 
in  insolvent  circumstances,  and  stating  special  damage,  but  without  setting  out 
the  words,  was  held  ill.     (Cook  v.  Cox,  3  M.  &  S.  110.) 

1620  Newton  v.  Stubbs,  3  Mod.  71 ;    2  Show.  435. 

1621  Ford  v.  Bennett,  1  Ld.  Raym.  415 ;  Rex  v.  Bear,  2  Salk.  417. 

1  --  Wright  v.  Clements,  3  B.  <fe  Aid.  503.  Where  a  declaration  for  a  libel  sets 
out  a  publication  which  refers  to  a  previous  publication,  but,  unless  by  reference 
to  the  language  of  the  previous  publication,  contains  no  libel,  such  previous  publi- 
cation must  be  considered  as  incorporated  in  the  publication  complained  of,  and 
must  appear  in  the  declaration  to  be  set  out  verbatim,  and  not  merely  in  substance. 
Therefore  judgment  was  arrested  as  to  the  second  count  of  a  declaration,  which, 
after  reciting  that  defendant  published  a  statement  "  in  substance  as  follows,"  set- 
ting out  the  publication  charged  in  the  first  count,  charged  that  defendant  after- 
wards published,  of  and  concerning  plaintiff,  and  of  and  concerning  the  first  pub- 
lication, a  statement  that  the  copper  tank  was  fitted  up  in  a  schooner  belonging  to 
plaintiff.     (Solomon  v.  Lawson,  8  Q.  B.  823.) 

,m  Woodv.  Brown,  6  Taunt.  169;  and  see  Cook  v.  Cox,  1  M.  &  S.  110,  alleg- 
ing the  speaking  of  certain  words,  or  words  of  the  same  import,  was  held  good 
after  verdict.     (Bell  v.  Bugg,  4  Mumf.  260.) 

1624  Bagley  v.  Johnston,  i  Rich.  22;  Watson  v.  Music,  2  Mis.  29;  Zeig  v.  Ort,  3 
Chand.  (Wis.)  26;  Bass,//  v.  Spofford,  11  N.  Hamp.  127;  Churchill  v.  Kimbatt,  '■' 
Ham.  409;  Rex  v.  May,  1  Doug.  193.  A  count  in  slander  stating  that  defendant 
charged  plaintiff  with  the  crime  of  forgery,  held  bad  ( Yundt  v.  Yundt,  12  S.  <fc  R. 


412  PLEADING. 

import,  and  effect.1625  Nor  are  quotation  marks  sufficient  to 
indicate  that  the  exact  words  are  set  forth.1626  Where  the  de- 
famation consists  in  the  adoption  of  words  spoken  by  another, 
the  declaration  must  set  forth  the  words  with  the  same  particu- 
larity as  though  the  action  were  against  that  other.1627 

§  330.  Where  the  words  were  published  in  a  foreign  lan- 
guage, the  foreign  words  must  be  set  forth,1628  together  with  a 
translation  into  English.  To  set  forth  the  foreign  words  alone, 
or  the  translation  alone  would  not  be  sufficient.1629  The  omission 
to  set  forth  a  translation  may  be  rectified  by  an  amendment.1630 
On  a  general  denial,  the  plaintiff  must  prove  the  correctness  of 
the  translation,  but  its  correctness  is  admitted  by  a  demurrer.1631 
To  allege  a  publication  of  English  words  and  prove  a  publica- 


427) ;  and  so  of  perjury  (  Ward  v.  Clark,  2  Johns.  10) ;  and  where  a  count  alleged 
that  defendant  charged  plaintiff  with  the  crime  of  theft,  without  setting  out  the 
exact  words,  it  was  held  bad  after  verdict.  (Parsons  v.  Bellows,  6  N.  Harnp.  289.) 
In  Massachusetts,  even  before  the  statute  of  1852,  it  was  held  sufficient  to  allege 
that  defendant  accused  plaintiff  of  a  certain  crime,  as  stealing,  without  setting  out 
the  words  spoken  (Pond  v.  Hartwell,  17  Pick.  269;  Allen  v.  Perkins,  Id.  369; 
Gardner  v.  Dyer,  5  Gray,  22;  Nye  v.  Otis,  8  Mass.  122;  Whiting  v.  Smith,  13  Pick. 
364:  Gay  v.  Horner,  13  Pick.  535  :  and  see  Kennedy  v.  Lowry,  1  Binn.  393  ;  Grubs 
v.  Keyser,  2  McCord,  305);  but  in  that  State  the  defendant  is  entitled  to  a  bill  of 
particulars  setting  forth  the  exact  words.  (See  Payson  v.  Macomber,  3  Allen,  71.) 
A  count  in  slander  alleging  that  defendant  wrongfully  and  without  reasonable 
cause  "  imposed  the  crime  of  felony"  upon  the  plaintiff,  was  held  good  after  ver- 
dict. (Davis  v.  Noakes,  1  Stark.  377 ;  Hill  v.  Miles,  9  N.  Hamp.  9.)  In  actions 
for  malicious  prosecution,  it  is  sufficient  to  declare  quod  crimen  felonice  imposuit, 
without  stating  the  words.  (Pippet  v.  Hearn,  5  B.  <fc  Aid.  634 ;  Blizard  v.  Kelly, 
2  B.  &  C.  283  ;  Davis  v.  Make,  6  M.  &  S.  33.) 
1626  Forsyth  v.  Edmiston,  5  Duer,  653. 

1626  Commonwealth  v.  Wright,  1  Cush.  46. 

1627  Blessing  v.  Davis,  24  Wend.  100. 

1628  Zenobiav.  Axtell,  6  T.  R.  162. 

1629  Wormouth  v.  Cramer,  3  Wend.  394;  Setterman  v.  Ritz,  3  Sandf.  734;  Zeig 
V.  Ort,  3  Chand.  26 ;  Kerschbaugher  v.  Slusser,  12  Ind.  453 ;  Hickley  v.  Grosjean, 
6  Blackf.  351 ;  Rehauser  v.  Schwerger,  3  Watts,  28. 

1630  Zenobia  v.  Axtell,  6  T.  R.  162;  Rehauser  v.  Schwerger,  3  Watts,  28  ;  Jenk- 
ins v.  Phillips,  9  C.  <fe  P.  766.  An  amendment  was  allowed  by  inserting  the  foreign 
words.     (Deboux  v.  Lehind,  1  Code  Rep.  N.  S.  235.)     See  Variance. 

1631  Hickley  v.  Grosjean,  6  Blackf.  351. 


THE    COMPLAINT.  413 

tion  of  words  in  another  tongue  is  a  variance,1632  and  cause  for  a 
nonsuit.1633 

§  331.  The  object,  or  one  of  the  objects,  of  obliging  a  plain- 
tiff to  set  forth  in  his  complaint  the  very  words  complained 
against,  is,  that  the  defendant  may,  if  he  desires  it,  by  demur- 
ring, have  the  benefit  of  taking  the  opinion  of  the  court  upon  the 
actionable  quality  of  the  words.1634 

§  332.  One  exception  to  the  rule  now  under  consideration  is 
said  to  be,  when  the  words  published  are  so  obscene  as  to  render 
it  improper  that  they  should  appear  upon  the  record,  and  in  such 
case  the  statement  of  the  words  may  be  omitted  altogether,  and 
a  description  substituted ;  but  the  reason  for  not  setting  forth  the 
exact  words  must  appear  by  proper  averments  on  the  face  of 
the  complaint.1635 

§  333.  The  omission  to  set  forth  in  the  declaration  the  very 
words  published  is  a  variance,  and  in  the  practice  at  common 
law  the  omission  was  not  cured  by  verdict,  and  might  be  taken 
advantage  of  by  motion  in  arrest  of  judgment.1636  The  degree 
of  certainty  with  which  the  defamation  must  be  set  forth  de- 
pends upon  the  subject-matter.  Where  the  defamation  consists 
mainly  in  postures  and  movements,  the  use  of  language  some- 
what general  is  unavoidable  ;  and  where  a  declaration  alleged, 
that  the  defendant  published  of  and  concerning  a  certain  court- 
martial,  and  of  and  concerning  the  plaintiff  as  a  member 
thereof,  a  defamatory  libel  and  caricature,  consisting  of  a  pic- 
ture representing  and  pointing  out  the  court-martial,  and  the 
plaintiff  as  a  member  thereof,  by  their  position  and  certain  gro- 

1682  Keenholts  v.  Becker,  3  Denio,  346 ;  Kerschbaugher  v.  Slusser,  12  Ind.  453. 

16,3  Zenobia  v  Axtell,  6  T.  R.  162 ;  Zeig  v  Ort,  3  Chand.  26. 

1034  Wood  v.  Brown,  6  Taunt.  169. 

1635  Commonwealth  v.  Tarbox,  1  Cush.  46;  Commonwealth  y.  Holmes,  17  Mass. 
336.  Indecent  words  tending  only  to  aggravate  the  damages  need  not  be  repeated 
in  the  declaration.     (Stevens  v.  Handley,  Wright,  121. ) 

l™  Gutsole  v.  Mathers,  1  M.  &  W.  495 ;  Wright  v.  Clements,  3  B.  &  A.  503.  And 
see  Variance. 


414  PLEADING. 

tesque  resemblances,  &c.,  it  was  held,  after  verdict,  to  be  aver- 
red with  sufficient  certainty  that  the  plaintiff  was  specifically 
and  individually  libelled.1637 

§  334.  The  rule  now  under  consideration  does  not  render  it 
necessary  to  set  forth  the  whole  of  the  matter  published  ;  it  is 
sufficient  to  set  forth  the  particular  passages  complained  of,  pro- 
vided they  are  divisible  from  and  their  meaning  is  not  affected 
by  the  other  and  omitted  passages.1638  It  is  sufficient  to  set  out 
the  word*  which  are  material,  and  additional  words,  which  do 
not  diminish  nor  alter  the  sense  of  the  words  truly  alleged,  may 
be  omitted.1639  But  enough  must  be  set  forth  to  show  the  sense 
and  connection  in  which  words  set  forth  were  used  ;  otherwise 
there  will  be  a  variance,  even  if  the  precise  words  laid  are 
proved  to  have  been  spoken.1640  Where  several  passages  are 
extracted  from  the  same  publication,  care  should  be  taken  to 
show  that  such  is  the  case,  as  by  prefacing  the  first  extract 
with  the  allegation,  in  a  certain  part  of  which  said  libel  there 
was  and  is  contained,  &c,  and  by  prefacing  the  subsequent  ex- 
tracts with  the  allegation,  and  in  a  certain  other  part  of  which 
said  libel  there  was  and  is  contained,  &c.1641  But  unless  the  in- 
sertion of  the  whole  matter  published  would  be  oppressive  and 
embarrassing,  there  is  no  objection  to  setting  forth  the  whole  of 
the  matter  published.     Thus,  where  in  slander  the  words  set 

1637  Ellis  v.  Kimball,  16  Pick.  132.  Judgment  was  arrested  in  an  action  for 
slander  respecting  a  bribe,  because  the  charge  did  not  specify  to  whom  the  money 
was  given.  {Purdy  v.  Stacey,  5  Burr.  2698.)  A  declaration  in  slander  for  charg- 
ing the  plaintiff  with  larceny,  held  good  after  verdict,  although  it  did  not  set 
forth  the  name  of  the  owner  of  the  property  alleged  to  have  been  stolen  by 
plaintiff.  {Thompson  v.  Barkley,  27  Penn.  St.  R.  263.)  It  is  not  necessary  to  set 
forth  the  imputation  of  an  offence  with  the  same  particularity  as  in  an  indictment. 
(Id. ;  Niven  v.  Munn,  13  Johns.  48.)  • 

1638  Culver  v.  Van  Anden,  4  Abb.  Pra.  Rep.  375 ;  Rex  v.  Brereton,  8  Mod.  329 ; 
Sidman  v.  Mayo,  1  Rolle  R.  429. 

1639  Spencer  v.  McMasters,  16  111.  405;  Weir  v.  Hoss,  6  Ala.  881;  Buckingham. 
v.  Murray,  2  Car.  &  P.  46. 

1640  Edgerlyv.  Swain,  32  N.  Hamp.  478. 

1641  Tabert  v.  Tipper,  1  Camp.  350;   Cooke  v.  Hughes,  1  Ry.  &  M.  112. 


THE    COMPLAINT.  415 

out  were,  "  Your  wife  is  a  damned  Irish  woman,  and  has  got 
the  palsy,  and  your  son  is  insane,  and  you  are  a  damned  thief," 
the  court,  on  motion,  refused  to  strike  out  as  redundant  the 
words  in  italic}*®  In  an  unreported  case  in  New  York,  in 
which  the  plaintiff  set  out,  without  innuendoes,  the  whole  of  the 
publication  [nearly  an  entire  column  in  a  newspaper],  on  de- 
fendant's motion  an  order  was  made  requiring  the  plaintiff  to 
specify  the  particular  passages  on  which  he  relied  as  defama- 
tory. 

§  335.  It  is  an  elementary  rule  of  pleading  that  whatever  is 
alleged  must  be  alleged  with  certainty ;  and  one  of  the  means 
of  ensuring  certainty  in  a  complaint  for  slander  or  libel  is  an 
innuendo.im  Among  the  attempts  to  define  an  innuendo  and 
explain  its  function  are  the  following :  The  office  of  an  innu- 
endo is  to  aver  the  meaning  of  the  language  published.1644  An 
innuendo  means  nothing  more  than  the  words  "  id  est,"  "  scili- 
cet," or  "meaning"  or  "aforesaid,"  as  explanatory  of  a  matter 
sufficiently  expressed  before.1645  It  is  in  the  nature  of  a  prwdict. 
It  may  serve  for  an  explanation,  to  point  a  meaning  where 

1642  Deyo  v.  Brundage,  13  How.  Pra.  Rep.  221. 

1643  Rodeburgh  v.  Hollingsworth,  6  Ind.  339. 

1644  Watson  v.  Nicholas,  6  Humph.  174.  The  office  of  the  innuendo  is  to  ex- 
plain doubtful  words  or  phrases,  and  annex  to  them  their  proper  meaning.  It 
cannot  extend  their  sense  beyond  their  usual  and  natural  import,  unless  some- 
thing is  put  upon  the  record  by  way  of  introductory  matter  with  which  they  can 
be  connected.  In  such  case,  words  which  are  equivocal  or  ambiguous,  or  fall 
short,  in  their  natural  sense,  of  importing  any  libellous  charge,  may  have  fixed  to 
them  a  meaning,  certain  and  defamatory,  extending  beyond  their  ordinary  im- 
port. (Beardsley  v.  Tappan,  1  Blatch.  C.  C.  588.)  And  to  the  like  effect,  see 
Horsey  v.  Whipps,  8  Gill,  457 ;  Nichols  v.  Packard,  16  Verm.  83 ;  Patterson  v.  Ed- 
wards, 2  Gilman,  720;  Andrews  v.  Woodmansee,  15  Wend.  232;  Taylor  v.  Knee- 
land,  1  Douglass,  67 ;  Gosling  v.  Morgan,  32  Penn.  St.  R.  273 ;  The  State  v.  Hen- 
derson, 1  Richardson,  179;  Caverleyv.  Caverley,  3  Up.  Can.  Rep.  338,  0.  S. ;  Van 
Vechtenv.  Hopkins,  5  Johns.  211;  Caldwell  v.  Abbey,  Hardin,  529;  McOxen  v. 
Ludlam,  2  Harr.  12;  Beswick  v.  Chappel,  8  B.  Mon.  486;  Benaway  v.  Coyne,  8 
Chand.  (Wis.)  214;  Vaughan  v.  Havens,  8  Johns.  109;  Gompertz  v.  Levy,  1  Perr. 
«fe  Dav.  214;  Hodge  v.  Laccy,  2  Carter  (Ind.),  212;  Cramer  v.  Noonan,  4  Wis. 
231. 

1846  Rex  v.  Home,  2  Cowper,  688 ;  approved  Reg.  v.  Virrier,  4  Per.  <fc  D.  161. 


416  PLEADING. 

there  is  precedent  matter,  expressed  or  necessarily  understood 
or  known,  but  never  to  establish  a  new  charge.  It  may  apply 
what  is  already  expressed,  but  cannot  add  to  nor  enlarge  nor 
change  the  sense  of  the  previous  words.1646  If  the  words  before 
the  innuendo  do  not  sound  in  slander,  no  meaning  produced  by 
the  innuendo  will  make  the  action  maintainable,  for  it  is  not  the 
nature  of  an  innuendo  to  beget  an  action.1647  An  innuendo 
helps  nothing  unless  the  words  precedent  have  a  violent  pre- 
sumption of  the  innuendo."  ms  The  business  of  an  innuendo 
is  by  a  reference  to  preceding  matter  to  fix  more  precisely  the 
meaning.1649  "  The  ofiice  of  an  innuendo  is  to  explain  not  to 
extend  what  has  gone  before,  and  it  cannot  enlarge  the  mean- 
ing of  words,  unless  it  be  connected  with  some  matter  of  fact 
expressly  averred."1650  The  innuendo  "is  only  a  link  to  attach 
together  facts  already  known  to  the  court."1651 

§  336.  An  innuendo  cannot  perform  the  office  of  a  collo- 
quium;1652 in  other  words,  the  want  of  a  colloquium  cannot  be 
supplied  by  an  innuendo.1653  The  absence  of  a  colloquium, 
showing  by  extrinsic  matter  that  the  words  charged  are  action- 
able, is  not  supplied  by  an  innuendo  attributing  to  those  words 

1646  1  Stark.  Sland.  418;  Rex  v.  Greepe,  2  Salk.  513;  1  L'd  Raym.  256;  12 
Mod.  139;  1  Saund.  243;  Van  Vechteny.  Hopkins,  5  Johns.  220;  McClaughry  v. 
Wetmore,  6  Johns.  83;  Thomas  v.  Croswell,  7  Johns.  271;  Weed  v.  Bibbins,  32 
Barb.  315. 

1647  Barham  v.  Nethersole,  Yelv.  21. 

1648  Cattleman  v.  Hobbs,  Cro.  Eliz.  428. 

1649  Bex  v.  Aylett,  1  T.  R.  63. 

1660  Patterson  y.  Edwards,  2  Gilman,  720 ;  Van  Vechten  v.  Hopkins,  5  Johns. 
211.  The  innuendo  cannot  introduce  new  matter.  (Taftv.  Howard,  1  Chip.  275 ; 
Nichols  v.  Packard,  16  Verm.  83 ;  Wier  v.  Hoss,  6  Ala.  881.)  Or  change  the  ordi- 
nary meaning  of  language.     {Hays  v.  Mitchell,  7  Blackf.  117.) 

1661  Cooke  on  Defamation,  94. 

1662  Fitzsimmons  v.  Cutter,  1  Aik.  33 ;  The  State  v.  Henderson,  1  Richardson, 
179 ;  Lindsey  v.  Smith,  7  Johns.  359. 

1655  Church  v.  Bridgman,  6  Mis.  190;  Milligan  v.  Thorn,  6  Wend.  412;  Sayre 
v.  Jewett,  12  Wend.  135;  Hawkes  v.  Hawkey,  8  E.  R.  427;  Joralemon  v.  Pomeroy, 
2  New  Jersey,  271.  The  words,  "  Thereby  accusing  the  plaintiff  of  stealing,"  in 
a  declaration  immediately  following  words,  alleged  to  have  been  spoken,  which 


THE  COMPLAINT.  417 

a  meaning  which  renders  them  actionable.1654  "Words  not  in 
themselves  actionable,  cannot  be  rendered  so  by  an  innuendo, 
without  a  prefatory  averment  of  extrinsic  facts,  which  makes 
them  slanderous. 1655  If  the  words  charged  do  not  imply  a  crim- 
inal charge,  subject  to  infamous  punishment,  an  innuendo  will 

do  not  of  themselves  amount  to  a  charge  of  larceny,  without  any  precise  collo- 
quium or  averment  showing  such  to  have  been  the  intention,  are  not  sufficient  to 
make  the  declaration  good.  (Broivnv.  Brown,  2  Shep.  81*7.)  Where,  in  an  action 
for  slander,  the  declaration  alleged  that  the  defendant  had  said  of  the  plaintiff 
that  he  had  set  fire  to  his  own  premises,  innuendo  that  plaintiff  had  been  guilty 
of  wilfully  setting  fire  to  the  premises  which,  whilst  in  his  occupation,  had  been 
destroyed  by  fire,  it  was  held,  on  motion  in  arrest  of  judgment,  that  the  court 
could  not  after  verdict  presume  that  the  jury  had  found  that  defendant  meant  to 
impute  to  plaintiff  that  he  had  done  it  unlawfully  or  feloniously,  as  well  as  wil- 
fully. (Sweetapple  v.  Jesse,  2  Nev.  &  M.  36 ;  5  B.  &  Adol.  27.)  In  slander,  the 
declaration  stated  that  the  plaintiff  was  a  justice  of  the  peace,  and  that  the  de- 
fendant, meaning  to  injure  and  expose  him  to 'prosecution  for  corruption,  &c,  in 
a  certain  discourse,  <&c,  said  of  the  plaintiff,  in  his  office  of  justice :  "  L.  (mean- 
ing the  plaintiff)  had  been  feed  by  A.  W.  (meaning  A.  W.,  who  lately  had  a 
cause  pending  and  determined  before  the  plaintiff ),  and  that  he  (the  defendant 
meaning)  could  do  nothing  when  the  magistrate  was  in  that  way  against  him  (the 
defendant  meaning).  After  verdict,  the  declaration  was  held  sufficient.  {Burtch 
v.  Nickerson,  17  Johns.  217.)  Where  the  words  in  themselves  were  such  a3  were 
usually  applied  to  the  keeper  of  a  gambling  house,  and  obviously  imputed  to  the 
plaintiff  fraudulent  and  dishonorable  conduct ;  held,  that  the  declaration  might 
be  supported,  although  the  words  might  not  be  capable,  by  innuendo,  of  being 
referred  to  any  particular  malpractices.  (Digby  v.  Thomson,  1  Nev.  <fe  M.  485.) 
An  averment  in  a  declaration  that  the  defendant  had  spoken  of  and  concerning 
the  plaintiff  these  words:  "N.  [meaning  the  plaintiff ]  burnt  it  [meaning  the 
store],  and  he  [meaning  the  plaintiff]  knew  it,  and  I  [meaning  the  defendant]  can 
prove  it,"  preceded  by  a  colloquium  that  the  words  were  spoken  of  and  concern- 
ing the  burning  of  a  store  owned  by  the  defendant,  and  followed  by  an  averment 
that  the  words  were  intended  to  charge  the  plaintiff  with  a  felonious  burning,  &c, 
was  held  sufficient.     (Nichols  v.  Packard,  16  Verm.  83.) 

lfiM  Holton  v.  Muzzy,  30  Verm.  (1  Shaw),  365. 

1056  Watts  v.  Greexleaf,  2  Dev.  115.  See  Brown  v.  Brown,  2  Shep.  317;  Har- 
ris v.  Barley,  8  N.  Hamp.  256  ;  Bt'swhk  v.  Chappel,  8  B.  Monr.  ^86  ;  Dottarer  v. 
Bushey,  16  Penn.  State  Rep.  (4  Harris),  204;  Moseley  v.  Moss,  6  Gratt.  534;  Wat- 
son v.  HamjAon,  2  Bibb,  319  ;  Hale  v.  Blandy,  1  You.  <fe  Jar.  480.  A  declaration 
containing  words  which,  in  common  understanding,  would  import  the  crime 
against  nature,  preceding  them  with  an  averment  that  they  were  intended  to 
charge  the  plaintiff  with  that  crime,  and  following  them  with  an  averment  that 
they  were  so  understood,  is  good.  (Goodrich  v.  Woolcot,  3  Cow.  231 ;  affirmed, 
5  Cow.  714.) 

27 


418  PLEADING. 

not  help  them ;  but  when  they  are  used  in  a  double  sense,  the 
plaintiff  may,  by  an  innuendo,  aver  the  meaning  with  which  he 
thinks  they  were  spoken,  and  the  jury  may  find  whether  they 
were  spoken  with  that  meaning  or  not.1656  Thus,  where  the 
charge  was  that  the  plaintiff  lived  by  swindling  and  robbing 
the  public,  here  the  language  might  mean  either  fraud  or  felony. 
The  plaintiff,  in  his  declaration,  alleged  that  it  meant  to  charge 
him  with  being  guilty  of  felony  and  robbery.  On  the  trial  it 
was  held  to  impute  only  a  charge  of  fraud,  and  as  a  charge  of 
fraud  is  not  actionable  per  se  the  plaintiff  failed  in  his  ac- 
tion.1657 

§  337.  An  innuendo  cannot  extend  the  meaning  of  defama- 
tory matter,  unless  by  reference  to  matter  of  inducement.  The 
innuendo  must  be  supported  by  the  inducement.1658  "Where 
there  was  no  inducement,  and  the  allegation  was,  "  T.  Barham 
(the  plaintiff)  hath  burnt  my  barn"  (meaning  my  barn  at  that 
time  full  of  corn)  ;  after  verdict  for  the  plaintiff  judgment  was 
'arrested,  because  to  burn  the  barn  was  only  a  trespass,  and  the 
innuendo  meaning  a  barn  full  of  corn,  extended  the  significa- 
tion of  the  word  burn,  and  was  unwarranted.1659  It  should 
have  been  averred  that  the  plaintiff  had  a  barn  full  of  corn, 
and  that  in  a  conversation  about  that  barn,  the  defendant  had 
spoken  the  words  charged ;  then  the  innuendo  that  barn  meant 
"  my  barn  full  of  corn,"  would  have  been  good.  In  libel,  an  in- 
nuendo imputing  to  the  plaintiff  larceny  of  plants  and  flowers 
of  the  defendant,  and  motion  in  arrest  of  judgment,  on  the 
ground  that  larceny  could  not  be  committed  of  flowers,  and  so 

ltM  Dottarer  v.  Bushey,  16  Penn.  St.  Rep.  (4  Harris),  204. 

1657  Smith  v.  Carey,  3  Camp.  401. 

1658  Taylor  v.  Knecland,  1  Doug.  67;  The  State  v.  Henderson,  1  Rich.  179; 
Stacker  v.  Davis',  8  Blackf.  414.  A  judgment  in  blander  will  not  be  arrested  be- 
cause an  innuendo  enlarges  the  natural  meaning  of  the  words  spoken.  (Shullzy. 
Chambers,  8  Watts,  300 ;  Solomon  v.  Lawson,  8  Q.  B.  823.)  But  if  rejecting  the 
innuendo  as  surplusage,  the  words  are  not  actionable  per  se,  judgment  must  be 
arrested.  {Barham  v.  Nethcrsole,  Yelv.  21 ;  Qaim>ford  v.  Blatchford,  7  Price,  544  ; 
6  Price,  36.) 

1659  Barham  v.  Nether  sole,  Yelv.  21. 


THE  COMPLAIXT.  419 

the  innuendo  was  too  large ;  it  was  held  sufficient  after  verdict 
as  the  term  flowers  must  be  taken  to  have  meant  such  flowers 
as  were  capable  of  being  the  subject  of  larceny,  by  beino-  de- 
tached, or  otherwise.1660  And  where  the  language  of  the  plain- 
tiff, as  clerk  of  a  company,  was,  "  You  have  done  many  things 
with  the  company  for  which  you  Ought  to  be  hanged,  and  I  will 
have  you  hanged  before,"  &c. ;  and  there  was  an  innuendo  that 
the  plaintiff  had  been  guilty  of  felonies  punishable  by  law  with 
death  by  hanging,  it  was  held  sufficient,  on  motion  in  arrest  of- 
judgment,1661  The  word  forsworn  cannot  by  an  innuendo  alone 
be  interpreted  perjury.  Thus  where  the  allegation  was,  "  John 
Holt  (meaning  the  plaintiff)  hath  forsworn  himself  (meaning 
that  the  plaintiff  had  committed  wilful  and  corrupt  perjury) ; 
after  verdict  for  the  plaintiff  judgment  was  arrested,  because 
the  innuendo  was  unwarranted  by  any  inducement.1662  In 
slander,  the  plaintiff  averred  that  he  had  in  due  manner  put  in 
his  answer  on  oath  to  a  bill  filed  against  him  by  the  defendant 
in  the  Court  of  Exchequer,  but  did  not  proceed  to  aver  any  col- 
loquium respecting  that  answer,  with  reference  to  which  the 
words  were  spoken ;  and  then  alleged  that  the  defendant  said 
of  him  that  he  was  forsworn,  innuendo  that  the  plaintiff  had 
perjured  himself  in  what  he  had  sworn,  in  his  aforesaid  answer 
to  the  said  bill ;  held,  that  this  innuendo  could  not,  without  the 
aid  of  such  a  colloquium,  enlarge  the  sense  of  the  words  by  re- 
ferring them  to  the  answer  averred  in  the  prefatory  part  of  the 


1000  Gardiner  v.  Williams,  2  Cr.  M.  &  R.  78;  3  Dowl.  Pra.  Cas.  796.  In  this 
case,  one  of  the  coimts  set  forth  the  following  passage  of  a  letter  from  the  defend- 
ant to  one  P. :  "  I  have  reason  to  suppose  that  many  of  the  flowers  of  whicli  I  have 
been  robbed  are  growing  upon  jour  premises"  [thereby  meaning  that  the  plain- 
tiff had  been  guilty  of  larceny,  and  had  stolen  from  the  defendant  certain  plants, 
roots,  and  flowers  of  the  defendant,  and  had  unlawfully  disposed  of  them  to  P., 
and  unlawfully  placed  them  in  P.'s  garden].  The  previous  part  of  the  letter 
stated  that  the  plaintiff,  whom  P.  had  taken  into  his  employ  as  a  gardener,  had 
been  in  the  defendant's  employ  in  the  same  capacity,  and  had  been  discharged 
for  dishone&ty;  held,  on  error,  that  the  innuendo  was  not  too  large.  (1  M.  &  W. 
245.) 

1661  Francis  v.  Roose,  3  M.  &  W.  191. 

IC6a  Holt  v.  Scholefield,  6  Term  R.  691. 


420  PLEADING. 

declaration  to  have  been  put  in.1663  "Where  the  declaration  only 
alleged  the  intention  to  impute  misconduct,  and  that  the  defend- 
ant maliciously  published  a  notice,  "  That  any  person  giving  in- 
formation where  property  belonging  to  the  plaintiff,  a  prisoner 
in  the  King's  Bench  prison,  might  be  found,  should  receive  five 
per  cent,  on  the  goods  recovered,"  an  innuendo  that  thereby  the 
plaintiff  had  been  guilty  of  concealing  his  property,  with  a 
fraudulent  and  unlawful  intention,  was  held  bad,  on  demurrer, 
as  enlarging  the  meaning  of  the  terms  used.16?4  In  an  action  for 
a  libel,  the  first  count,  after  the  usual  prefatory  averments,  pro- 
ceeded thus:  ""What  possessed  Lord  H.  (meaning  thereby  the. 
said  Lord  Lieutenant  of  Ireland),  if  he  knew  anything  about 
the  country,  or  was  not  under  the  spell  of  vile  and  treacherous 
influence,  to  make  his  first  visit,  and  that  carefully  puffed,  to 
Long's,  the  coachmaker  (meaning  thereby  the  said  plaintiff), 
the  other  day  ?  If  mere  trade  was  his  (meaning  thereby  the 
said  Lord  Lieutenant's)  object,  he  had  several  respectable  houses 
open  to  him"  (meaning  thereby  that  the  house  and  place  of  busi- 
ness of  the  said  plaintiff  were  not  respectable,  and  that  the  said 
visit  was  paid  thereto  for  political  objects).  Held,  that  the 
innuendo  did  not  enlarge  the  sense  of  these  words,  which  were 
fully  capable  of  the  meaning  given  to  them.1665  And  where  the 
declaration  stated  that  the  plaintiff  was  a  trader,  and  employed 
by  the  board  of  ordnance  to  relay  the  entrance  of  their  office 
with  new  asphalte,  and  that  the  defendant  falsely  said  of  him 
in  his  said  trade,  and  in  reference  to  the  work :  "  The  old  mate- 
rials have  been  relaid  by  you  in  the  asphalte  work  executed  in 
front  of  the  ordnance  office,  and  I  have  seen  the  work  done." 
Innuendo  that  the  plaintiff  had  been  guilty  of  dishonesty  in 
the  conduct  of  his  said  trade,  by  laying  down  again  the  old 
asphalte  which  had  been  before  used  at  the  entrance  of  the 
ordnance  office,  instead  of  new  asphalte,  according  to  his  con- 
tract.    Held,  on  motion  to  arrest  the  judgment,  that  the  decla- 

lH03  Hawles  v.  Hawkey,  8  East,  427. 

1664  Gompertz  v.  Levy,  1  Perr.  &  Day.  214. 

1CB5  Barrett  v.  Long,  16  Eng.  Law  &  Eq.  R.  1 ;  3  Ho.  of  Lords  Cas.  395. 


THE  COMPLAINT.  421 

ration  was  sufficient,  and  the  innuendo  was  not  too  large,  as  it 
put  no  new  sense  on  the  words,  but  only  imputed  intention  to  the 
speaker.1666  Where  the  words  set  forth  were,  that  A  was  mur- 
dered, and  the  plaintiff  was  concerned  in  it  and  had  a  hand  in 
it,  innuendo  meaning  that  the  plaintiff  aided  and  assisted  in 
the  commission  of  the  murder,  it  was  held  to  be  sufficient.1667 
The  first  count  of  a  declaration  charged  the  speaking  these 
words  of  and  concerning  the  plaintiff:  "You  are  a  bloody 
thundering  thief,  and  all  your  family.  I  can  prove  you  and 
them  to  be  thieves.  I  can  prove  you  (meaning  plaintiff)  to  go 
down  the  river  (meaning  the  river  Thames)  with  ships  of  eight 
feet  water  (meaning  ships  drawing  eight  feet  water),  charging 
the  owners  for  ten  feet,  &c. ;  and  you  (meaning  plaintiff)  are 
obliged  to  move  from  one  parish  to  another  "  (meaning  thereby 
that  the  plaintiff  was  guilty  of  dishonesty,  and  of  charging 
more  for  the  pilotage  of  certain  ships  than  he  was  by  law  enti- 
tled to  do).  Held,  that  the  words  were  actionable  without 
any  innuendo,  but  that  those  put  were  proper.1608  "  I  have 
heard  that  a  maid  of  Sir  J.  K.'s  should  report,  that  he  being 
sick  and  she  looking  through  a  hole  of  the  door,  saw  a  priest 
(innuendo  a  popish  priest)  give  the  eucharist  and  extreme  unc- 
tion ;  "  *  *  *  and  "  saw  a  popish  priest  anoint  (innuendo 
extreme  unction)  him."  Held,  after  verdict,  that  priest  was 
rightly  construed  popish  priest,  and  anoint  was  rightly  con- 
strued extreme  unction.1669  Where  the  words  charged  as  libel- 
lous were,  "  Who  was  deprived  of  a  two-penny  justiceship,  for 
malpractice  in  packing  a  jury,"  and  they  were  explained,  by  an 
innuendo,  as  meaning  "that  the  plaintiff  had  packed  a  jury, 
and  had  been  guilty  of  malpractice  in  packing  a  jury,"  it  was 
held  that  the  innuendo  was  warranted  by  the  words  charged.1670 


,M»  Baboncau  v.  Farrell,  28  Eng.  Law  &  Eq.  R.  339;  15  C.  B.  360;  24  Law  J. 
Rep.  (N.  S.)  C.  P.  9;  1  Jur.  N.  S.  114. 

im  Tenney  v.  Clements,  10  N.  Harap.  52. 

lf,6B  Sempsey  v.  Levy,  2  Jurist,  776. 

ma  Knightly  v.  Marrow,  3  Lev.  68. 

1670  Mix  v.  Woodward,  12  Conn.  262.  In  an  action  for  slander,  the  innuendoes 
"meaning  to  insinuate  and  falsely  represent,"  '•meaning'  to  insinuate  and  be  un- 


422  PLEADING. 

§  338.  Where  language  is  ambiguous,  and, is  as  susceptible 
of  a  harmless  as  of  an  injurious  meaning,  it  is  the  function  of 
an  innuendo  to  point  out  the  meaning  which  the  plaintiff  claims 
to  be  the  true  meaning,  and  the  meaning  upon  which  he  relies 
to  sustain  his  action.  This  applies  whether  the  ambiguity  be 
patent  or  latent  [§  128]  ,1671  and  whether  or  not  there  are  any 
facts  alleged  as  inducement.1672  By  this  means  the  defendant 
is  informed  of  the  precise  charge  he  has  to  meet,  and  to  deny 
or  justify  ;  but  the  plaintiff  is  subjected  to  the  risk  that  if  he 
claims  for  the  language  a  meaning  which  is  not  the  true  one, 
or  one  which  he  is  unable  to  make  out  satisfactorily,  he  may 
be  defeated  on  the  ground  of  variance  or  failure  of  proof . 
For  when  the  plaintiff,  by  his  innuendo,  puts  a  meaning  on 
the  language  published,  he  is  bound  by  it,  although  that  course 
may  destroy  his  right  to  maintain  the  action ;  as  where  the 
alleged  slander  was  that  "  Mrs.  B.'s  time  has  come  around  (in- 
nuendo that  the  usual  period  of  parturition  had  arrived),  and 
he  (plaintiff)  is  down  there  getting  a  child  away  from  her. 
He  is  procuring  an  abortion  upon  her."  It  was  held  that  but 
for  the  interpretation  the  plaintiff  had,  by  the  innuendo,  put 
on  the  words  "  her  time  has  come  around,"  the  words  were 
actionable,  but  with  that  meaning  they  were  not  actionable, 
and  plaintiff  was  bound  by  the  interpretation  he  had  himself 
supplied.1673  And  so  where  the  plaintiff  alleged  that  he  was 
treasurer  and  collector  of  certain  tolls,  and  that  defendant  pub- 
lished of  him  (plaintiff),  as  such  treasurer  and  collector,  "  You 
are  gathering  the  toll  for  your  own  pocket,"  innuendo  that 

derstood,"  or  "  meaning  and  intending  to  represent,"  "  that  the  plaintiff  had  stolen 
the  money  aforesaid,"  indicate  that  the  defendant's  charge  against  the  plaintiff 
was  that  he  had  stolen  the  money,  and  therefore  were  sufficient.  (Hoyt  y.  Smith, 
82  Yt.  (3  Shaw),  304.) 

1671  Griffith  v.  Lewis,  8  Q.  B.  841;  Jor demon  v.  Pomeroy,  2  New  Jer.  2*71 ; 
Watson  v.  Nicholas,  6  Humph.  174.  But  "it  is  not  allowable  to  interpret  what 
has  no  need  of  interpretation."  [McCluskey  v.  Cromwell,  1  Kernan,  601;  and 
ante,  note  129.) 

1672  Clegrj  v.  Laffer,  3  Moo.  &  Sc.  727;  10  Bing.  350;  Williams  v.  Stott,  1  C. 
&  M.  675;  Smith  v.  Carey,  3  Camp.  461. 

W73  Butler  v.  Wood,  10  How.  Pra.  R.  222. 


THE    COMPLAINT.  423 

plaintiff,  being  such  treasurer  and  collector,  was  guilt y  of  col- 
lecting tolls  to  improperly  apply  them  to  his  own  use ;  on  the 
trial,  the  plaintiff  having  proved  that  he  was  treasurer  only, 
and  not  collector,  the  variance  was  considered  fatal,  and  the 
plaintiff  was  nonsuited  ;  for  the  words  were  applicable  to  the 
plaintiff  rather  in  his  character  of  collector  than  treasurer 
and  the  plaintiff  was  bound  to  prove  the  words  applicable  to 
the  plaiutiff  in  the  manner  which,  he  himself  had  pointed  out 
by  innueudo.1674 

§  339.  If  the  innuendo  consists  of  two  distinct  allegations, 
■which  can  be  separated  without  destroying  the  sense  of  either 
of  them,  and  one  of  them  is  and  the  other  is  not  warranted  by 
the  alleged  libellous  matter,  the  latter  may  be  rejected  and  the 
count  will  be  valid.1673  Therefore,  in  an  action  of  slander, 
where  the  words  alleged  to  have  been  spoken  clearly  charged 
the  killing  of  a  horse,  and  the  innuendo  was  that  the  defendant 
intended  to  charge  the  plaintiff  with  arson,  it  was  held  that 
the  innuendo  might  be  stricken  out,  and  the  declaration  sus- 
tained upon  the  charge  of  killing  the  horse.1676 

§  340.  The  following  innuendoes  were  held  to  be  proper, 
without  any  inducement  to  support  them  :  Bishops,  innuendo 
Bishops  of  England ; 1677  Ministers,  innuendo  the  Ministers  of 
the  King  of  England  ; 1678  The  Navy,  innuendo  the  Royal 
Navy  of  this  kingdom ; 1679  Chevalier,  innuendo  the  Pretend- 
er ;  168°  Little  Gentleman  on  the  other  side  of  the  water,  innu- 
endo  the  Prince   of    Wales ; 1681    Door,   innuendo   The  Outer 

1074  Mian  v.  Tell,  3  B.  &  C.  655;  see  ante,  note  1561. 

1075  Barrett  v.  Long,  8  Irish  Law  Rep.  331. 
1616  Gage  v.  Shelton,  3  Rich.  242. 

1677  Baxter's  Case,  3  Mod.  69. 

1078  Anon.  11  Mod.  99. 

1079  Tutchin's  Case,  5  State  Trials,  590. 
1680  Rex  v.  Matthews,  9  State  Trials,  682. 
16tI  Anon.  11  Mod.  99. 


42-i  PLEADING. 

Door  ; 1GSi  Death,  innuendo  Murder ; 16S3  His,  innuendo  the  de- 
fendant ; im  mere  man  of  straw,  innuendo  he  was  insolvent.1685 

§  341.  The  following  innuendoes  were  held  to  be  unwar- 
ranted, there  being  no  inducement  to  support  them  :  Thomas- 
ton,  innuendo  the  State  Prison  situate  in  the  town  of  Thomas- 
ton  ; im  He  fired  his  house,  innuendo  he  voluntarily  fired  his 
house  ; 1687  She  is  sick,  innuendo  she  has  had  a  child  ; 1688  Tan- 
money,  innuendo  money  the  produce  of  the  sale  of  Tan ; 1689 
She  is  a  bad  girl,  innuendo  a  prostitute  ;  169°  Public  house,  in- 
nuendo bawdy  house  ; 1691  Thou  hast  stolen  half  an  acre  of  my 
corn,  innuendo  the  corn  growing  upon  half  an  acre  of  ground 
reaped  and  put  into  shocks  by  the  defendant ; 1692  You  are  a 
regular  prover  under  bankruptcies,  innuendo  that  plaintiff  was 
accustomed  to  prove  fictitious  debts  under  commissions  of 
bankruptcy  ; 1693  He  had  corn  from  B.'s  barn,  innuendo  that  he 
had  stolen  corn  from  B. ; 1664  my  landlord,  innuendo  the  plain- 
tiff; 1695  Your  father,  innuendo  the  plaintiff;1696  Thy  son,  innu- 
endo the  plaintiff.1697 


1682  Bex  v.  Aylett,  1  T.  R.  63. 
,683  Oldham  v.  Pcake,  2  W.  Black.  959. 

1664  Muck's  Case,  8  Mod.   30.     Filly  horse,  innuendo  the  plaintiff's  wife,  his 
name  being  floss.     (Weir  v.  Hoss,  6  Ala.  881  ;  and  see  ante,  note  132.) 
1986  Eaton  v.  Johns,  1  Dowl.  Pra.  Cas.  N.  S.  602. 

1686  Emery  v.  Frescott,  54  Maine,  389. 

1687  Anon.  11  Mod.  220. 

1688  Smith  v.  Gafford,  33  Ala.  108. 

1089  Day  v.  Robinson,  1  Ad   &  Ell.  554. 

1690  Sndl  v.  Snow,  13  Mete.  278. 

1691  Dodge  v.  Lacey,  2  Cart.  212;  ante,  note  184. 

1692  Casdeman  v.  Hobbs,  Cro.  Eliz.  428. 

1693  Alexander  v.  Angle,  1  Tyrw.  9;    1    C.    &  J.  143;    7  Bing.  119;  4  M.  &  P. 
870. 

1694  Wheeler  v.  Haines,  1  Perr.  &  Day.  55;  9  Adol.  &  Ell.   286  n;    Harvey  v. 
French,  2  Moo.  &  S.  591. 

1695  Cro.  Car.  40;  1  Stark.  Sland.  386. 

1696  Golds.  187;   Cro.  Eliz.  416,  439;  Cro.  Car.  92,  173;  Mo.  365. 

1697  Shalmer  v.  Foster,  Cro.  Car.  177  ;  but  see  Wiseman  v.  Wiseman,  Cro.  Jac. 
107,  where  it  was  alleged  the  defendant  spoke  the  words  de  prafato  auerente  ex- 


THE  COMPLAINT.  425 

§  342.  Evidence  cannot  be  introduced  to  support  or  ex- 
plain an  innuendo.1698  "  I  never  knew  an  innuendo  offered  to 
be  proved."  1699  Its  truth  must  always  appear  from  precedent 
averments.1700  An  issue  cannot  be  raised  upon  the  truth  of  an 
innuendo.1701  "Where  an  averment  or  colloquium  introduces 
extrinsic  matter  into  a  complaint,  that  is  proper  subject  of 
proof.1702  Whether  the  language  is  capable  of  bearing  the 
meaning  assigned  by  the  innuendo,  is  for  the  court ;  whether 
the  meaning  is  truly  assigned  to  the  language,  is  for  the 
jury.1703 

§  343.  Where  the  language  is  not  in  itself  applicable  to  the 
plaintiff,  no  innuendo  can  make  it  so.1704  But  where  the  mat- 
ter published  on  its  face  appears  to  apply  to  a  class  of  individ- 
uals, the  plaintiff  may  by  an  innuendo  show  that  the  publication 
applied  to  him ;  that  is,  not  extending  the  sense  of  the  matter. 
Therefore,  where  the  declaration  alleged  that  the  plaintiff 
was  owner  of  a  factory  in  Ireland,  and  charged  that  the  de- 
fendant published  of  him  and  of  the  said  factory  a  libel,  im- 
puting that,  "  in  some  of  the  Irish  factories  "  (meaning  there- 
by the  plaintiff's)  "cruelties  were  practised,"  though  there 
was   no   allegation   otherwise   connecting!;  the  libel    with   the 


istente  fratre  suo  naturali,  and  adjudged  for  plaintiff.  Where  the  description 
may  apply  to  one  of  a  class,  as  brothers  or  sons,  it  is  unnecessary  for  the  plaintiff 
to  aver  that  he  is  the  only  brother  or  only  son.  (1  Stark.  Sland.  388.)  See  ante, 
note  1582. 

1698  The  State  v.  Henderson,  1  Richardson,  179;  Van  Veehtcn  v.  Hopkins,  5 
Johns.  211;  Gidney  v.  Blake,  11  Johns.  54 ;  see  Johnston  v.  McDonald,  2  Up. 
Can.  Q.  B.  Rep.  209. 

. 1699  Pollexfen  arg.  Rosewell's  Case,  3  State  Trials,  1058,  admitted  by  court  and 
opposite  counsel,  cited  and  approved  Van  Vechten  v.  Hopkins.  5  Johns.  226. 

1,00  Taylor  v.  Knceland,  1  Douglass,  67. 

1101  Fry  v.  Bennett,  5  Sandf.  5-4;    Commonwealth  v.  Snelliny,  15  Pick.  335. 

1702  Van  Vechten  v.  Hopkins,  5  Johns.  24. 

1703  Blayyv.  Sturt,  10  Q.  B.  899;  Broome  v.  Gosden,  1  C.  B.  728;  Barrett  v. 
Long,  3  Ho.  of  Lords  Cas.  395  ;  Babonneau  v.  Farrell,  15  C.  B.  300;  Hemmings  v. 
Gason,  5  Irish  Law  Rep.  498. 

1704  See  in  note  132,  ante. 


426  PLEADING. 

plaintiff,  was,  after  verdict,  held  good.1705  If  the  plaintiff  is 
designated  by  another  name  in  the  libel,  his  real  name  may  be 
designated  by  an  innuendo.1™  In  libel  the  plaintiff'  averred 
that  she  was  the  mother'  of  one  Edward  J.  Barker,  and  that 
defendant,  knowing  this,  to  defame  her  published  "  of  the  Bar- 
kers— that  was  the  name  of  his  reputed  father,  what  was  his 
mother's  I  either  never  knew  or  have  forgot,  but  I  know  it 
was  not  Barker,"  innuendo  that  plaintiff  was  the  mother  of  an 
illegitimate  child,  on  demurrer  held  that  the  declaration  was 
good.1707  A  count  in  libel,  after  averring  that  a  sum  of  money 
was  standing  in  the  Bank  of  England,  at  the  time  of  the 
death  of  one  W.  T.,  in  his  name,  alleged  that  the  defendant 
published  concerning  the  plaintiff,  and  concerning  such  money, 
the  following  libel :  "  There  is  strong  reason  for  believing  that 
a  considerable  sum  of  money  was  transferred  from  Mr.  T.'s 
[meaning  the  said  W.  T.'s]  name  in  the  books  of  the  Bank  of 
England,  by  power  of  attorney  obtained  from  him  by  undue 
influence,  after  he  became  mentally  incompetent  to  perform 
any  act  requiring  reason  and  understanding  "  [thereby  meaning 
that  the  plaintiff  had  transferred,  or  caused  to  be  transferred, 
the  said  money  from  the  said  W.   T.'s  name  in  the  said  books 

1706  LeFanu  v.  Malcomson,  1  House  of  Lords  Cas.  637;  13  Law  Times,  61 ; 
Parker  v.  Raymond,  3  Abb  Pra.  Rep.  343  ;  Marsden  v.  Henderson,  22  Up.  Can. 
Q.  B.  Rep.  585.  There  needs  no  innuendo  when  the  words  are  spoken  to  the 
plaintiff  himself.  (2  Rolle  Rep.  243.)  "You  have  bewitched  my  mare,"  innuen- 
do the  mare  of  the  plaintiff  instead  of  the  defendant,  held  good  after  verdict. 
{Smith  v.  Cooker,  Cro.  Car.  512),  but  see  ante,  note  1579. 

1708  Hays  v.  Brierley,  4  Watts,  392.  "Mr.  Deceiver"  (meaning  the  plaintiff), 
held  good  on  writ  of  error.  (Fleetwood  v.  Curie,  Cro.  Jac.  557.)  The  following 
was  held  sufficient  to  point  out  the  plaintiff  "  This  diabolical  character,  like 
Polyphemus,  the  man-eater,  has  but  one  eye,  and  is  well  known  to  all  persons 
acquainted  with  the  name  of  a  certain  circumnavigator,"  meaning  to  allude  to  the 
plaintiff's  name.  (J'Anson  v.  Stuart,  1  T.  R.  748.)  A  declaration  in  slander, 
which,  averring  a  colloquium  concerning  the  plaintiff  and  A.,  charged  the  de- 
fendant with  saying  that  A.  thinks  it  a  hard  matter  to  commit  fornication  with 
"his  niece"  (meaning  the  plaintiff ),  was  held  sufficient,  without  an  averment 
that  the  plaintiff  was  A.'s  niece.     (Millevv.  Parish,  8  Pick.  384.) 

1707  Anderson  v.  Stewart,  8  Up.  Can.  Q.  B.  Rep.  243 ;  and  see  ante,  note  1697. 


THE    COMPLAINT.  427 

of  the  said  bank,  by  means  of  a  power  of  attorney  obtained 
by  him  from  the  said  W.  T.,  by  undue  influence  exercised  by 
him  over  the  said  W.  T.,  at  a  time  when  the  said  W.  T.  had 
become  and  was  mentally  incompetent  to  give  a  power  of  at- 
torney, and  to  perform  any  act  requiring  reason  and  under- 
standing]. Held,  after  verdict  for  plaintiff,  on  motion  in  arrest 
of  judgment,  that  the  libel  was  sufficiently  shown  to  point  to 
the  plaintiff.1708  Averments  were  introduced  into  the  declara- 
tion, of  words  spoken  by  the  defendant  imputing  dishonesty  to 
L.,  the  name  of  L.  being  followed  by  the  innuendo,  "  meaning 
the  plaintiff 's  agent  and  clerk,"  but  there  was  nothing  else 
in  the  declaration  showing  any  connection  between  L.  and  the 
plaintiffs.  Held,  that  in  the  absence  of  a  direct  averment  con- 
necting L.  with  the  plaintiffs  or  their  business,  the  words  al- 
leged to  have  been  spoken  concerning  him  were  not  actionable 
in  favor  of  the  plaintiffs.1709  Where  the  alleged  libel  consisted 
of  a  passage  in  a  newspaper  warning  certain  persons  to  avoid 
the  traps  laid  for  them  by  desperate  adventurers,  innuendo  the 
plaintiff  amongst  others,  was  after  verdict  held  sufficiently  to 
point  out  the  plaintiff.1710  Where  there  was  no  colloquium  that 
the  defamatory  matter  was  concerning  the  justices  of  Suffolk, 
and  it  did  not  appear  on  the  face  of  the  alleged  libel  that  it 
applied  to  such  justices,  it  was  held  that  the  defamatory  matter 
could  not  be  connected  with  or  applied  to  such  justices  by 
means  of  an  innuendo.1711 

§  344.  If  a  complaint  is  sufficient  without  the  innuendo,  the 
innuendo  may  be  rejected  as  surplusage;  im  the  innuendo  may 


1708  Turner  v.  Merryioether,  13  Jur.  683;  18  Law  Jour.  C.  P.  155;  12  Law 
Times,  474. 

1709  Smith  v.  Hollister,  32  Verm.  (3  Shaw)  695. 

1710  Wakley  v.  Healey,  18  Law  Jour.  241,  0.  P. 

1,11  Rex  v.  Alderton,  Sayre,  280;  and,  to  the  like  effect,  Hawkes  v.  Hawkey,  8 
East,  427  ;  Savage  v.  Robery,  Cowper,  680. 

1715  Commonwealth  v.  Snelling,  15  Pick.  335  ;  Moseley  v.  Moss,  6  Grattan,  534; 
Cooper  v.  Greeley,  1  Denio,  360;  Harvey  v,  French,  1  Cr.  &  M.  1,  affirmed  2  Mo.  & 
Sc.  591 ;  Gage  v.  Shclton,  2  Rich.  242;   Giles  v.  The  State,  0  Geo.  276. 


428  PLEADING. 

always  be  rejected  when  it  merely  introduces  matter  not  neces- 
sary to  support  the  action,1713  or  when  it  is  incongruous,1714  or 
too  broad  ; 1715  an  innuendo  that  the  attorney-general  spoken  of 
meant  the  attorney-general  for  the  County  Palatine  of  Chester 
was  so  rejected.1716 

§  345.  Special  damages  or  those  damages  which  are  not 
the  necessary  consequence  of  the  language  complained  of 
[$§  197  to  202],  must  be  specially  alleged  in  the  complaint,  or 
the  plaintiff  will  not  be  allowed  on  the  trial  to  go  into  evidence 
to  prove  such  damages.1717  Where  the  language  is  actionable 
per  se,  special  damage  need  not  be  alleged ; 1718  but  if  the  lan- 
guage is  not  actionable  per  se,  special  damage  must  be  alleged. 
Allegations  of  special  damages  are  not  traversable.  They  are 
inserted  in  the  complaint  to  apprise  the  defendant  of  what  he 
must  be  prepared  to  rebut  on  the  trial.1719  Where  the  declara- 
tion set  forth  that  the  plaintiff  was  a  ship-master,  the  words  de- 
faming him  as  such,  and  that,  by  reason  of  the  same,  "  certain 


1713  Thomas  v.  Crosswell,  7  Johns.  264;  Crosswell  v.  Weed,  25  Wend.  621 ;  Car- 
ter v.  Andrews,  16  Pick.  1 ;  Carroll  v.  White,  33  Barb.  621 ;  Hudson  v.  Garner,  22 
Miss.  (1  Jones)  423;  RodebaugliY.  Hollingsworth,  6  Ind.  339. 

1,14  Gardiner  v.  Williams,  2  Cr.  M.  &  R.  78;  3  Dowl.  Pra.  Cas.  T96. 

1715  Benaway  v.  Coyne,  3  Chand.  (Wis.)  214;  Barrett  v.  Long,  16  Eng.  Law  <fc 
Eq.  R.  1  ;  3  Ho.  of  Lords  Cas.  395. 

1116  Roberts  v.  Camden,  9  East,  93  ;  and  see  Day  v.  Robinson,  4  Nev.  &  M.  841  ; 
West  v.  Smith,  4  Dowl.  703. 

1717  Squier  v.  Gould,  14  Wend.  159  ;  Strang  v.  Whitehead,  12  Id.  64  ;  Birch  v. 
Benton,  26  Miss.  (5  Jones)  155  ;  Johnson  v.  Robertson,  8  Porter,  486;  Barnes  v. 
Trundy,  31  Maine,  (1  Red.)  321;  Bostwick  v.  Nicholson,  Kirby,  65;  Bostwick  v. 
Haivley,  lb.  290  ;  Shipman  v.  Burroios,  1  Hall,  399  ;  Harcourt  v.  Harrison,  lb. 
474  ;  Geare  v.  Britton,  Bull.  N.  P.  7  ;  Wilsonv.  Runyon,  Wright,  651.  Nor  to  give 
evidence  of  a  general  loss  of  reputation.  (Herrickv.  Lapham,  10  Johns.  281.)  A 
complaint  for  words  in  writing  charging  insanity  need  not  allege  special  damage. 
(Perkins  v.  Mitchell,  31  Barb.  4G1.)  So  in  an  action  by  one  of  several  partners. 
(Robhison  v.  Marchant,  7  Q.  B.  918.) 

1728  Hicks  v.  Walker,  2  Greene  (Iowa)  440. 

1719  Malony  v.  Bows,  15  How.  Pra.  R.  265. 


THE    COMPLAINT.  429 

insurance  companies  in  the  city  of  New  York  refused  to  insure 
any  vessel  commanded  by  him,  or  any  goods  laden  on  board 
any  vessel  by  him  commanded  ;  "  Held,  that  the  allegation  was 
too  general,  and  that  proof  could  not  be  given  under  it  of  the 
refusal  of  a  particular  company  to  insure  the  plaintiff's  vessel.1'20 
Where  the  allegation  was,  that  certain  persons,  naming  them, 
who  would  otherwise  have  employed  plaintiff,  refused  so  to  do ; 
Held,  that  the  allegation  was  not  supported  by  evidence 
that  certain  other  persons  would  have  recommended  plaintiff  to 
the  persons  named  in  the  declaration,  and  that  if  the  plaintiff 
had  been  so  recommended,  the  persons  named  in  the  declaration 
would  have  employed  him  ;  the  not  employing  being  not  on  ac- 
count of  the  slander,  but  of  the  non-recommendation.1721  In  an 
action  of  slander  imputing  incontinence  to  the  plaintiff,  it  was 
held  enough  to  state,  that  the  plaintiff  was  occasionally  em- 
ployed to  preach  to  a  dissenting  congregation  at  a  certain  li- 
censed chapel,  from  which  he  derived  considerable  profit,  and 
that,  by  reason  of  the  scandal,  "  persons  frequenting  the  chapel 
had  refused  to  permit  him  to  preach  there,  and  had  discontinued 
the  emoluments  which  they  would  otherwise  have  given  him," 
without  saying  who  those  persons  were,  or  by  what  authority 
they  had  excluded  him,  or  that  he  was  a  preacher  duly  qualified 
according  to  statute  (10  Anne,  c.  2) ; 1T22  and  in  an  action 
for  slander  for  words  spoken  of  the  plaintiff  in  his  trade  or  busi- 
ness, with  a  general  allegation  of  loss  of  business,  it  is  compe- 
tent to  the  plaintiff  to  prove,  and  the  jury  to  assess  damages  for 
a  general  loss  or  decrease  of  trade,  although  the  declaration 
alleges  the  loss  of  particular  customers  as  special  damage,  which 
is  not  proved.1723    As  a  general   rule   the  customers  should  be 

1,50  ShipmanY,  Burrows,  1  Hall,  399. 

1721  Strong  v.  Foreman,  2  C.  &  P.  592. 

1735  Hartley  v.  Herring,  8  T.  R.  130. 

1753  Evans  v.  Harries,  38  Eng.  Law  &  Eq.  R.  347  ;  1  Hurl.  &  Nor.  251.  The 
plaintiff  may  aver  a  general  diminution  of  business,  or  particular  instances  of 
damage;  in  the  latter  case  the  names  of  the  customers  lost  should  be  given. 
{Hamilton  v.  Walters,  4  Up.  Can.  Rep.  24,  0.  >S.) 


430  PLEADING. 

r 

named,1724  but  this  is  not  always  necessary.1725  The  omission  of 
the  names  of  the  customers  lost,  amounts  only  to  a  want  of  defi- 
niteness,  and  in  New  York  is  to  be  taken  advantage  of  by  a 
motion  to  make  definite  and  certain,  not  by  demurrer.1726 

§  346.  Where  loss  of  certain  customers,  naming  them,  is  al- 
leged, the  best  evidence  in  support  of  such  allegation  is  the  tes- 
timony of  the  persons  named  ; 1727  and  so  where  it  is  alleged  that 
certain  persons,  naming  them,  refused  to  employ  the  plaintiff, 
the  best  evidence  of  such  refusal  is  the  testimony  of  the  persons 
named.1728  In  an  action  for  words  not action  able  per  se,  the  dec- 
laration alleged  for  special  damage,  that,  in  consequence  of  the 
speaking  of  the  words,  four  of  plaintiff's  customers  ceased  to  deal 
with  him.  Three  of  those  persons  proved  only  that  they  ceased 
to  deal  with  plaintiff  in  consequence  of  reports  they  had  heard 
in  the  neighborhood  ;  but  the  fourth  proved  the  speaking  by 
the  defendant  of  words  substantially  as  charged,  and  stated  that 
he  did  not  deal  with  plaintiff  afterwards.  Held,  some  evidence 
of  special  damage.1729 

§  347.  A  plaintiff  may  unite  in  one  complaint  a  cause  of 
action  for  slander  with  a  cause  of  action  for  libel,  or  for  mali- 
cious prosecution,1730  or  slander  of  title.1731     A  cause  of  action  in 

1724  Mayne  on  Damages,  278,  317;  Feise  v.  Under,  3  B.  <fc  P.  372.  In  New 
York  it  was  held  that  a  general  averment  of  loss  of  customers  is  not  a  sufficient 
allegation  of  special  damages,  and  that  no  proof  of  loss  of  customers  can  be  given 
under  such  an  allegation.  {Tobias  v.  Harland,  4  Wend.  537  ;  and  see  Halleck  v. 
Miller,  2  Barb.  630.)  The  loss  of  a  customer  is  special  damage,  although  if  the 
dealing  had  taken  place  the  plaintiff  woidd  have  lost  by  it.  {Storey  v.  Challands,  8 
C.  &.  P.  234.) 

1725  Trenton  Ins.  Co.  v.  Perrine,  3  Zab.  402. 

1726  Hewitt  v.  Mason,  24  How.  Pra.  R.  366. 

1727  Tilk  v.  Parsons,  2  Car.  &  P.  201. 

1728  Johnson  v.  Robertson,  8  Porter,  486. 

1729  Bateman  v.  Lyall,  7  C.  B.  (N.  S.)  638. 

1730  Martinv.  Mattison,  8  Abb.  Pra.  Rep.  3 ;  Shore  v.  Smith,  15  Ohio,  173;  King 
v.  Waring,  5  Esp.  13  ;  Manning  v.  Fitzherbert,  Cro.  Car.  271 ;  Hull  v.  Vreeland, 
42  Barb.  543 ;  Delegal  v.  Highiey,  3  Bing.  N.  C.  950. 

1731  Cousins  v.  Merrill,  16  Up.  Can.  C.  P.  Rep.  114.  By  statute  in  Ireland,  in 
an  action  for  slander  or  libel,  counts  may  be  added  for  false  representation  of 
plaintiff's  goods.     {McXally  v.  Oldham,  8  Law  Times  Rep.  N.  S.  604.) 


THE    COMPLAINT.  431 

a  plaintiff  singly  for  slander  of  him  in  his  partnership  business, 
cannot  be  joined  with  a  cause  of  action  in  him  and  his  partners 
jointly.1732  Several  sets  of  words,  imputing  the  same  charge, 
and  laid  as  of  the  same  time,  may  be  included  in  one  count.1738 
You  may  put  into  one  count  all  the  words  published  at  one 
time,  but  not  words  published  at  different  times.1734  A 
complaint  which  sets  out  an  entire  conversation  in  which 
the  slander  was  spoken,  contains  only  one  cause  of  action 
although  the  conversation  consists  of  several  parts,  each  of 
which  is  actionable.1735  The  second  count  of  a  declaration 
in,  slander  charged  that  in  another  discourse  of  and  concern- 
ing plaintiff,  &c,  the  defendant  spoke  these  words  :  "  You,  Mrs. 
G.  (the  plaintiff),  have  used  them  for  years,"  (innuendo  that 
plaintiff  had  used  fraudulent  weights,  and  cheated  in  her  trade) ; 
and  also  in  the  last -mentioned  discourse,  in  answer  to  a  question 
put  by  the  plaintiff,  as  to  whether  the  defendant  had  said  to 
one  J.  G.  that  the  plaintiff's  son  had  used  two  balls  to  the 
plaintiff's  steelyard,  these  other  words :  "  to  be  sure  1  did,"  &c. ; 
and  also  these  other  words,  &c. ;  Held,  that  as  there  was  but 
one  continued  discourse  at  the  same  time,  this  was  but  one 
count,  although  the  words  set  out  were  divided  into  several 
sentences.1736  In  New  York,  where  the  complaint  contains  sev- 
eral causes  of  action,  each  cause  of  action  must  be  separately 
stated  and  numbered,1737  and  be  perfect  in  itself.1738 

1132  Robinson  v.  Mar  chant,  7  Q.  B.  918. 

1733  Rathbun  v.  Emigh,  6  Wend.  407  ;  Miligan  v.  Thorn,  6  Wend.  412;  Dioyt 
v.  Tanner,  20  Wend.  190;  Churchill  v.  Kimball,  3  Ohio,  (Ham.)  409;  Hoyt  v 
Smith,  32  Verm.  (3  Shaw)  304. 

1734  Hughes  v.  Rees,  4  M.  &  W.  204.  It  is  allowahle  to  include  in  the  same 
declaration  divers  distinct  words  of  slander  of  different  import.  (Hall  v. 
Nees,  27  HI.  411.)  It  is  sometimes  a  question  whether  a  declaration  consisted  of 
one  or  more  counts.  See  Cheatham  v.  Tillotson,  5  Johns.  430  ;  Griffith  v.  Lewis,  8 
Q.  B.  841. 

1738  Cracraflx.  Cochran,  16  Iowa,  301. 

1130  Griffiths  v.  Lewis,  8  Q.  B.  841  ;  7  Law  Times,  177. 

1737  Court  Rules,  19;  Pike  v.  Van  Wormer,  5  How.  Pra.  Rep.  171. 

1738  Holt  v.  Muzzy,  30  Verm.  (1  Shaw)  365;  Sinclair  v.  Fitch,  3  E.  D.  Smith, 
689. 


432  PLEADING. 

§  3i8.  In  Xew  York  a  supplemental  complaint  is  permitted. 
A  plaintiff  in  an  action  for  libel  may  be  allowed  to  serve  a 
supplemental  complaint  settiDg  out  matter  material  to  the  ac- 
tion, occurring  after  the  commencement  of  the  action.  And  in 
that  case  a  supplemental  complaint  was  allowed,  setting  up 
alleged  special  damage  occasioned  by  the  publication  of  the 
libel,  and  occurring  after  the  service  of  the  original  complaint.1739 

1739  Scott  v.  Bullock,  MS.  Gen.  Term  Superior  Court  New  York,  19  Dec.  1857. 


CHAPTER  XIV. 

PLEADING. ANSWER. DEMURRER. 

The  answer  corresponds  to  plea.  What  it  must  contain.  Plea 
to  part  of  a  count.  Answer  of  justification  must  give 
color,  show  a  lawful  occasion,  and  deny  malice.  Several 
answers.  Defence  of  truth  must  be  pleaded.  Sow 
pleaded.  Where  the  charge  is  general.  Where  the  charge 
is  specific.  Certainty  in  statement  of  facts.  Answer  of 
justification  bad  in  part,  bad  altogether.  Mitigating  cir- 
cumstances. 

§  349.  The  answer  corresponds  to  the  plea  in  the  common 
law  system  of  pleading.  In  ISTew  York  it  is  provided  as  to  an 
answer  generally,  that  it  "  must  contain  (1)  a  general  or  spe- 
cific denial  of  each  material  allegation  of  the  complaint  con- 
troverted by  the  defendant,  or  of  any  knowledge  or  informa- 
tion thereof  sufficient  to  form  a  belief;  (2)  a  statement  of  any 
new  matter  constituting  a  defence  or  counter-claim,  in  ordinary 
and  concise  language,  without  repetition."  And  with  regard 
to  answers  in  the  actions  for  slander  and  libel,  it  is  provided 
"the  defendant  may,  in  his  answer,  allege  both  the  truth 
of  the  matter  charged  as  defamatory,  and  any  mitigating  cir- 
cumstances to  reduce  the  amount  of  damages  ;  and  whether  he 
prove  the  justification  or  not,  he  may  give  in  evidence  the  mit- 
igating circumstances."  mo 

1740  Code  of  Pro.  §  149,  165.  An  answer  which  merely  states  that  the  defend- 
ant did  not  utter  the  words  alleged  at  the  place  and  time  alleged,  may  be  good  as 
a  general  denial.  {Salengcr  v.  Lusk,  7  How.  Pra.  Rep.  430.)  As  to  a  general 
denial  in  Maryland.  (Hagam  v.  Hendry,  18  Md.  177.)  A  plea  that  the  letter 
containing  the  defamatory  matter  was  intended  for  the  plaintiff  liimself,  but  by 
mistake  was  handed  to  his  employer,  was  held  bad.  {Fox  v.' Brodcrkk,  14  Irish 
28 


431  PLEADING. 

§  350.  The  general  issue  in  an  action  for  slander  or  libel 
was  "  not  guilty ; "  and  this  bad  probably  a  larger  effect  than 
lias  a  "  general  denial  "  under  the  New  York  Code,  by  which 
we  intend  that  under  the  "general  issue"  matters  of  defence 
were  admitted  which  wo tild  not  be  admitted  under  the  "gen- 
eral denial."  (See  post,  Evidence  under  general  issue.)  Un- 
der the  New  York  system  of  pleading,  every  defence  not  con- 
sisting of  a  mere  denial  must  be  specially  pleaded.  Much 
relating  to  the  subject  of  the  plea  or  answer  has  been  antici- 
pated [§  211  to  216],  and  much  more  on  the  subject  will  be 
found  under  the  head  of  Evidence. 

§  35 1 .  It  was  held  in  New  York  that  a  plea  in  bar  must 
answer  the  whole  count,  but  that  one  plea  might  state  several 
defences,  *.  e.  different  defences  to  different  parts.1741  Perhaps 
the  rule  is,  that,  if  the  matter  is  divisible,  although  contained 
in  one  count,  a  defendant  may  plead  to  part  of  the  matter  of 
one  count.1742 

§  352.  An  answer  of  justification  must  give  color  to  the 
extent  of  admitting,  for  the  purposes  of  the  answer  only,  the 
publication  complained  of.1743     But  this  admission  cannot  be 

Law  Rep.  453.)  In  an  action  for  libel  the  defendant  at  first  pleaded  not  guilty, 
but  afterwards  pleaded,  to  the  further  maintenance  of  the  action,  that  the  plain- 
tiff had  recovered  damages  against  another  person  for  the  same  grievances. 
New  assignment,  that  the  present  action  was  brought  for  other  and  different 
grievances.  Plea  to  new  assignment,  not  guilty.  Held,  that  this  did  not  admit 
the  innuendoes,  and  that,  by  pleading  not  guilty  to  the  new  assignment,  the  de- 
fendant had  raised  precisely  the  same  issue  as  if  the  libel  had  been  set  out  in  the 
declaration,  and  the  defendant  had  pleaded  not  guilty  to  it.  {Brunswick  [Duke 
of]  v.  Pepper,  2  Car.  &  K.  683.) 

1141  Cooper  v.  Greeley,  1  Denio,  365 ;  and  see  Amen  v.  Hazard,  6  R.  I.  335. 
That  plea  may  apply  to  part  of  libel,  see  Spencer  v.  Southwick,  11  Johns.  573. 

1742  See  Edwards  v.  Bell,  1  Bing.  403  ;  Cooper  v.  Laicson,  1  Perr.  &.  D.  15  ; 
O'Connell  v.  Mansfield,  9  Ir.  Law  Rep.  179  ;  and  see  ante,  note  292,  and  Torrty  v. 
Fields,  10  Verm.  353. 

1743  Fidler  v.  Delavan,  20  Wend.  57  ;  Wilson  v.  Beighhr,  4  Iowa,  427;  Yon- 
der veer  \.  Sutphin,  5  Ohio,  K  S.  293;  Fdsall  v.  Russell,  2  Dowl.  N.  S.  641;  5 
Sc.  N.  S.  801;  Davis  v.  Matthews,  2  Ham.  257;  Folsom  v.  Brown,  5  Foster,  N. 
Harup.  114;  Samuel  v.  Bond,  Litt.  Sel.  Cas.  158;    Buddington  v.  Davis,   6  How. 


ANSWER.  435 

used  to  defeat  a  denial  by  a  separate  answer.  Because  "  one 
plea  cannot  be'  taken  in  to  help  or  destroy  another,  but  even- 
plea  must  stand  or  fall  by  itself." 1744  A  plea  of  privileged 
publication  must  show  a  lawful  occasion,  and  a  denial  of 
malice ;  a  plea  which  only  alleged  that  the  defendant  spoke 
the  words  on  such  occasion,  firmly  believing  them  to  be  true, 
was  held  bad  for  want  of  an  express  or  implied  denial  of 
malice.1''45 

§  353.  The  defendant  may  in  one  answer  set  up  a  general 
denial,  or  not  guilty,  and  a  justification  on  the  ground  of 
truth.1746  But  he  cannot,  with  not  guilty  as  to  the  whole 
declaration,  plead  a  special  plea  of  apology  and  payment  into 
court  under  the  statute  6  &  7  Yict.  ch.  96,  as  to  part  of  the  de- 
claration.1747 Although  a  defendant  may  be  allowed  with  not 
guilty  to  plead  the  mere  fact  that  the  words  were  a  fair  com- 
ment without  malice,  he  cannot  with  not  guilty  interpose  a 
plea  alleging  the  existence  of  certain  facts,  and  that  the  alleged 

Pra.  R.  402 ;  Porter  v.  McCrecdy,  1  Code  Rep.  X.  S.  88.  A  plea  of  justification 
held  bad  unless  accompanied  with  a  traverse  of  the  publication  in  a  manner  to 
insult.  {Crawford  v.  Million,  12  S.  &  M.  328.)  See  Carlock  v.  Spencer,  2  Eng. 
12. 

1714  Grills  v.  Marwells,  Willis,  380  ;  Kirk  v.  Kowell,  1  T.R.  125;  Montgom  \ . 
Richardson,  5  C.  &  P.  247 ;  and  see  cases  collected  Voorhie3'  Code,  296  c,  8th  edit. ; 
contra,  see  Jackson  v.  Stetson,  15  Mass.  48  ;  Alderman  v.  French,  1  Pick.  1 ;  < 
v.  Jenness,  2  N.  Hamp.  89  ;  Wliittaker  v.  Freeman,  1  Dev.  280 ;  Wheeler  v.  Bobb, 
1  Blackf.  330 ;  Wright  v.  Lindsay,  20  Ala.  428 ;  Boss  v.  Jones,  5  Howard  (Miss.), 
158;  Rev.  Stat,  of  Mass.  ch.  100,  §  18 ;  Htx  v.  Drury,  5  Pick.  260. 

1,45  Smith  v.  Thomas,  2  Bing.  N.  S.  372  ;  2  Sc.  543  ;  4  Dowl.  Pra.  Cas.  333. 
Except  in  defences  of  privileged  publication,  the  denial  of  malice  forms  an  im- 
material issue.     {Fry  v.  Bennett,  5  Sandf.  54.) 

174,5  Buhler  v.  Wentworlh,  17  Barb.  649  ;  lhllenbeck  v.  Clow,  9  How.  Pra.  Rep. 
289;  Ormshy  v.  Brown,  5  Duer,  665;  Payson  v.  McComber,  3  Allen  (Maas.)  69  ; 
Miller  v.  Graham,  1  Brevard,  283;  Smith  v.  Smith,  89  Penn.  St.  Rep.  441;  and 
see  Kelly  v.  Craiy,  9  Humph.  215 ;  contra,  Atlebury  v.  Powell,  29  Miss.  (8  Jo 
429.  To  a  declaration  containing  three  counts  for  three  distinct  libels,  the  <  iurt 
refused  to  allow  the  defendant  to  plead  one  general  plea  of  justification.  {B.  mess 
v.  SUbbs,  7  C.  B.  N.  S.  555.) 

1747  O'Brien  v.  Clement,  15  M.  &  W.  435;  3  D.  &  L.  676;  15  Law  Jour.  Rep. 
285,  Ex. 


436  PLEADING. 

libel  was  a  fair  comment  on  transactions  of  public  notoriety. 
The  fact  of  fair  comment  is  involved  in  not  guilty.1748 

§  351.  A  defendant,  to  avail  himself  of  the  defence  of 
truth,  must  set  it  up  as  a  defence  by  plea  or  answer.1749  The 
defence  of  truth  may  be  interposed,  although  the  power  to 
punish  for  the  offence  has  been  tolled  by  lapse  of  time,1750  or 
although  the  plaintiff  has  been  tried  upon  the  charge  and  ac- 
quitted1751 or  pardoned.1752 

§  355.  That  the  justification  on  the  ground  of  truth  must  be 
as  broad  as  the  charge,  and  must  justify  the  precise  charge,  has 
already  been  considered.  [§  212.]  We  ha've  now  but  to  point 
out  some  other  requisites  of  a  plea  or  answer  on  the  ground  of 
truth.  These  depend  upon  whether  the  charge  is  general  or 
specific.  "Where  the  charge  is  in  general  terms,  the  answer 
must  state  the  facts  which  show  the  charge  to  be  true.  It  is  not 
sufficient  merely  to  allege  that  the  charge  is  true.1753  As  if  the 
charge  be  that  the  plaintiff  is  a  swindler,1754  or  a  thief,  or  a  perju- 

1,48  Lucan  v.  Smith,  38  Eng.  Law  &  Eq.  R.  395.  The  fact  that  the  same  matter 
which  is  specially  pleaded  might  be  given  in  evidence  under  the  general  issue,  is 
not  always  a  sufficient  ground  for  rejecting  the  special  plea.  {Parker  v.  Mc- 
Queen, 8  B.  Monroe,  16.)  In  an  action  for  a  libel  contained  in  two  letters  pub- 
lished in  a  newspaper,  the  defendant  pleaded  that  the  second  letter  (itself  action- 
able) was  a  fair  comment  upon  the  facts  in  the  first  letter;  held  bad.  (  Walker  v. 
Brogden,  19  J.  Scott,  N.  S.  64.) 

1749  Ante,  §211  to  216,  note  1031;  Manning  v.  Clement,  7  Bing.  367;  2 
Greenl.  Ev.  424 ;  Hagan  v.  Hendy,  6  R.  I.  335  ;  Frederitze  v.  Odenwalder,  2  Yeates, 
243.  The  plea  of  truth  is  an  issuable  plea.  (  Woodward  v.  Andrews,  1  Brev. 
310.) 

1760  Ankin.  v.  West/all,  14  Johns.  234.  Where  the  words  were  actionable  per 
se,  a  plea  of  not  guilty  within  two  years,  held  good.  (Quinnv.  Wilson,  13  Irish 
Law  Rep.  381.) 

1751  Cooke  v.  Field,  3  Esp.  133;  Fnglandv.  Burke,  Id.  SO. 

1752  Ante,  note  1031  and  §  158. 

1753  Fry  v.  Bennett,  5  Sandf.  69 ;  Lawton  v.  Hunt,  4  Rich.  458 ;  Atteberry  v. 
Powell,  29  Mis.  (8  Jones),  429.  Billings  v.  Waller,  28  How.  Pra.  Rep.  97.  Where 
a  particular  meaning  is  alleged,  it  is  not  sufficient  to  say  the  charge  is  true,  with 
the  addition  of  time,  place,  and  circumstance.     (Fidler  v.  Delavan,  20  Wend.  57.) 

1754  J' Anson  v.  Stuart,  1  T.  R.  748.  It  is  not  a  justification  of  a  charge  of 
plaintiff  being  a  swindler  to  allege  that  defendant  delivered  to  plaintiff  goods  to 


ANSWER.  437 

rer,  or  a  murderer,1755  or  that  lie  stole  a  watch,1756  or  certified  a 
lie,1757  or  was  of  intemperate  habits,1738  or  received  a  bribe,1759  or 
perverted  the  law.1760  The  distinction  seems  to  be  that  where 
the  charge  is  a  conclusion  or  inference  from  certain  facts,  there 
the  plea  must  set  up  the  facts  which  warrant  such  an  inference  ; 
but  where  the  charge  is  of  some  specific  act  or  acts,  there  it  is 
sufficient  if  the  plea  allege  that  the  charge  is  true.  Thus  if  it 
be  said  of  a  man  that  he  is  a  swindler,  this  is  an  inference  from 
his  actions,  and  which  can  be  proved  only  by  showing  aets  of 
fraud  on  the  part  of  the  plaintiff  amounting  to  swindling ;  and, 
therefore,  as  we  have  seen,  to  justify  a  charge  of  being  a  swin- 
dler, the  plea  must  allege  the  facts  upon  which  the  defendant 
relies  to  make  out  the  charge.  When  the  charge  is  general, 
and  the  answer  merely  an  averment  that  the  charge  is  true,  the 
plaintiff  may  under  the  New  York  Code  apply  to  have  the 
answer  made  "  definite  and  certain  ;"  but  he  is  not  obliged  to  do 
this,  he  may  lie  by  and  on  the  trial  object  to  the  reception  of 

sell  on  commission,  tbat  he  failed  to  return  them  or  to  account  for  th*n,  and  that 
he  made  an  assignment  for  the  benefit  of  his  creditors.  (Herr  v.  Bamberg,  10  How. 
Pra.  Rep.  128.) 

1756  Anon.  3  How.  Pra.  Rep.  406 ;  4  Id.  98,  347 ;  Sayles  v.  Wooden,  6  Id.  84  ; 
Johnson  v.  Stebbins,  5  Ind.  364.  Where  the  words  complained  of  were,  "  She  is  a 
thief,  and  has  stolen  my  gold  pen  and  pencil,"  held  that  the  answer  might  prop- 
erly allege  a  variety  of  thefts  by  the  plaintiff  of  different  articles,  as  going  to  jus- 
tify the  words  "  She  is  a  thief."  (Jaycocfcsv.  Ayres,  1  How.  Pra.  Rep  215.)  A 
charge  of  forgery  against  a  whole  community  was  held  to  be  justified  by  alleging 
a  falsification  of  poll  books.     (Fellows  v.  Hunter,  20  Up.  Can.  Q.  B.  Rep.  382.) 

1756  Anibal  v.  Hunter,  6  How.  Pra.  Rep.  255. 

1757  Jones  v.  Cecil,  5  Eng.  593. 

I76B  Buddington  v.  Davis,  6  How.  Pra.  Rep.  401. 

1769  Van  Ness  v.  Hamilton,  19  Johns.  349. 

1700  Riggs  v.  Denniston,  3  Johns.  Cas.  198.  In  an  action  of  slander,  when  the 
charge  is  made  directly,  the  plea  of  justification  should  aver  the  truth  of  the 
charge,  as  laid  in  the  declaration;  but  when  the  charge  is  made  by  insinu- 
ation and  circumlocution,  so  as  to  render  it  necessary  to  use  introductory  matter 
to  show  the  meaning  of  the  words,  the  plea  should  aver  the  truth  of  the  charge 
which  the  declaration  alleges  was  meant  to  be  made.  (Snow  v.  Witcher,  9  Ired. 
346.) 


438  PLEADING. 

any  evidence  in  support  of  such  a  plea,  either  in  bar  or  in 
mitigation.1761 

§  356.  As  to  specific  charges.  Where  the  charge  is  specific, 
there  the  answer  need  only  to  allege  that  the  charge  is  true.  Thus 
in  an  action  for  calling  the  plaintiff  thief,  and  saying  he  stole 
two  sheep  of  J.  S.,  the  defendant  pleaded  that  the  plaintiff  stole 
the  same  sheep,  by  reason  of  which  he  (defendant)  called  plain- 
tiff thief,  as  well  he  might,  and  the  plea  was  held  good.1762  And 
so  where  the  charges  were  of  theft  of  certain  articles  specified, 
and  of  practicing  prostitution,  specifying  instances ; 1763  and 
where  the  charge  was  that  the  plaintiff,  as  inspector  of  drugs, 
had  improperly  passed  an  adulterated  article,  an  answer  merely 
alleging  the  charge  to  be  true  was  held  to  be  sufficient.1764  A 
plea  that  the  defamatory  matter  "  is  true  in  substance  and 
effect  "  means  that  it  is  true  in  every  material  particular.1765    To 

171,1  Wackier  v.  Quenzer,  29  N.  Y.  553  ;  Tilson  v.  Clark,  45  Barb.  181 ;  and  see 
Uriel::'/  v.  Davis,  21  Pick.  404.  Generally,  upon  the  trial  the  plaintiff  cannot  ob- 
ject to  the  insufficiency  of  a  plea  of  justification  {Evans  v.  Franklin,  26  Mis.  5 
Jones,  252),  as  he  might  have  demurred;  but  if  the  justification  be  proved,  the 
defendant  is  entitled  to  a  verdict  on  that  plea  (Edmonds  v.  Walter,  3  Stark.  R.  7) ; 
and  see  Churchill  v.  Hunt,  2  B.  &  A.  685;  1  Ch.  480 ;  contra  as  to  a  notice  of 
justification.  (Thotnpson  v.  Bowers,  1  Doug.  321.)  Held  to  be  error  for  the  court 
to  charge  of  its  own  motion  that  the  plea  is  so  defective  as  not  to  be  available  to 
the  defendant.     (Bryan  v.  Gurr,  2*7  Geo.  3*78.) 

1762  1  Rolle  Abr.  87.  Where  the  original  charge  is  in  itself  specific,  the  de- 
fendant need  not  further  particularize  it  in  his  plea.     (1  Stark.  Slan.  47S.) 

3713  Steinman  v.  Clark,  10  Abb.  Pra.  E.  132. 

l"rA  Van  Wyck  v.  Guthrie,  A  Duer,  268.  A  general  plea  averring  the  plaintiffs 
residence  in  O.  county,  his  being  known  to  diyers  citizens  there,  and  having  a 
bad  reputation  among  them, is  good.     (Cooper  v.  Greely,  1  Den.  347.) 

17U3  Weaver  v.  Lloyd,  4  D.  &  R.  230.  A  plea  to  an  action  for  libel  purporting 
to  be  the  report  of  a  trial  "  that  the  alleged  libel  was  in  substance  a  true  report 
of  the  trial,"  was  held  bad  on  demurrer.  (Flint  v.  Pike,  6  D.  &  R.  528 ;  4  B.  & 
C.  473.)  To  a  declaration  for  an  alleged  libel  published  in  a  newspaper,  purport- 
ing to  be  an  account  of  the  trial  of  an  action,  the  plea  stated  that  at  the  trial  the 
counsel  made  the  speech  set  out  in  the  alleged  libel,  and  that  certain  witnesses 
proved  all  that  had  been  so  stated ;  held  bad,  on  demurrer,  for  that  the  plea  ought 
to  have  detailed  such  evidence,  and  shown  the  truth  of  the  facts  so  stated,  and 
not  merely  have  stated  the  conclusion  which  the  party  himself  drew  from  the 
evidence.     (Leicis  v.  Walter,  4  B.  cfc  A.  605.) 


ANSWER.  439 

a  charge  of  being  a  liar,  a  plea  that  •" sundry  honest  men, 
to  wit,  A.  B.,"  &c,  naming  them,  "  and  others,  believed  and 
considered  the  plaintiff  not  to  be  a  man  of  truth,  but  addicted 
to  falsehood,"  would  not  be  sufficient  justification.1766 

§  357.  The  facts  which  show  the  charge  to  be  true  must  be 
stated  with  certainty,1767  so  that  the  court  may  see  whether  the 
defendant  was  justified  in  what  he  published  ; 1768  and  (when  a 
reply  was  necessary)  so  that  the  plaintiff  might  have  an  oppor- 
tunity of  denying  and  taking  issue  upon  the  facts  alleged  ;  and 
it  was  no  excuse  for  general  pleading  that  the  subject  compre- 
hended a  multiplicity  of  facts  tending  to  prolixity,  nor  that  the 
plea  was  not  more  general  than  the  charge.1769  Where  a  decla- 
ration stated  that  plaintiff  was  lawfully  possessed  of  mines  and 
of  ore  gotten  from  them,  and  was  in  treaty  for  the  sale  of  the 
ore,  and  that  the  defendant  published  a  malicious,  injurious, 
and  unlawful  advertisement,  cautioning  persons  against  pur- 
chasing the  ore,  &c.,per  quod  he  was  prevented  from  selling; 
to  which  the  defendant  pleaded  in  justification,  that  the  share- 
holders in  the  mines  thought  it  their  duty  to  caution  persons 
against  purchasing  the  ore,  &c.  (pursuing  the  words  of  the  ad- 
vertisement) ;  this  plea  was  held  ill  on  special  demurrer ;  first, 

3766  Brooks  v.  Bemiss,  8  Johns.  455.  Under  aplea  of  justification  on  theground 
of  truth,  the  defendant  cannot  show  that  he  helieved  the  charge  true.  (Hix  v. 
Brury,  5  Pick.  296.)  Justification  of  a  libel,  that  there  was  a  reason  for  thinking 
the  imputation  was  true  for  what  had  been  said ;  held  bad  on  demurrer,  unless  it 
is  stated  what  had  been  said,  and  by  whom.  {Lane  v.  Bowman,  1  Price,  *76.)  To 
constitute  a  justification,  the  answer  should  aver  the  truth  of  the  defamatory 
matter  charged.  It  is  not  sufficient  to  set  up  the  facts  which  only  tend  to  estab- 
lish the  truth  of  such  matter.  (Thrall  v.  Smiley,  9  Cal.  529.)  Where  it  was 
alleged  that  the  defendant  spoke  of  the  plaintiff,  "I  am  told  M.  (plaintiff)  was  the 
man  who  killed  the  pedler,  and  I  believe  it,"  a  plea  which  averred  that  defend- 
ant was  told  plaintiff  was  the  man  who  murdered  the  pedler,  and  that  the  de- 
fendant did  believe  it,  was  held  bad.  (Muma  v.  Hammer,  17  Up.  Can.  Q.  B.  Rep. 
293.) 

1,67  Van  Ness  v.  Hamilton,  19  Johns.  349;  Iliggs  v.  Benniston,  3  Johns.  Cas. 
198. 

nee  forrey  v.  Field,  10  Verm.  353  ;  Johnson  v.  Stebbins,  5  Ind.  364. 

1769  Van  Ness  v.  Hamilton,  19  Johns.  849. 


440  PLEADING. 

because  it  did  not  disclose  the  names  of  the  adventurers,  or  who 
they  were ;  and  secondly,  because  it  did  not  show  that  the  de- 
fendant made  the  publication  under  the  direction  of  the  share- 
holders.1770 And  where  the  plaintiff,  a  justice  of  the  peace, 
brought  an  action  against  the  defendant  for  charging  him  with 
pocketing  all  the  fines  and  penalties  forfeited  by  delinquents 
whom  he  had  convicted,  without  distributing  them  to  the 
poor,  or  in  any  manner  accounting  for  a  sum  of  £50  then  on 
hand,  the  defendant  pleaded  that  the  plaintiff  was  a  justice  of 
the  peace,  and  that  during  the  time  he  acted  as  such  he  con- 
victed sundry  persons  in  sundry  sums  of  money,  for  divers 
offences  against  divers  statutes,  which  sum,  amounting  together 
to  £50,  he  received  of  the  persons  so  convicted,  and  had  not 
paid  over  the  same  as  required  by  law.  On  special  demurrer, 
the  plea  was  held  bad  [not  sufficiently  certain]  for  not  stating 
the  names  of  the  persons  who  paid  said  sums  of  money,  and  the 
amount  which  each  person  paid.1771  Where  the  libel  stated 
that  the  plaintiff,  as  manager  of  the  opera,  employed  his  critics 
in  attacking,  in  corrupt  and  purchased  newspapers,  the  females 
of  his  company,  it  was  held  that  the  justification  of  such  a 
charge  must  state  the  names  of  the  critics,  of  the  females,  and 
of  the  corrupted  newspapers,  and  the  substance  of  the  articles, 
and  the  time  and  place  of  their  publication.1772  But  where  the 
libel  charged  that  certain  exhibitions  of  opera  by  the  plaintiff 
were  an  unfit  resort  for  respectable  people,  and  that  they  were 
attended  by  persons  of  certain  specified  immoral  and  illegal 
occupations  or  pursuits — held  that  an  answer  justifying  such 
charge  need  do  no  more  than  reaffirm  the  statement  contained 
therein,  and  need  not  specify  the  names  of  the  persons  who 
attended  such  exhibitions ;  and  certainly  this  will  be  the  case 
where  the  defendant  alleges  that  the  names  of  such  persons  are 
unknown  to  him.1773  Where  the  charge  was  that  the  plaintiff 
made  himself  invisible  on  account  of  too  much  borrowing  and 


1770  Rowe  v.  Roach,  1  M.  &  S.  304. 

1771  Newman  v.  Bailey,  2  Cb.  C.  T.  M.  665. 

1772  Fry  v.  Bennett,  5  Sandf.  54. 

1773  Maretzek  v.  Cauldwell,  2  Robertson,  715. 


ANSWER.  441 

not  paying,  innuendo  that  plaintiff  ran  away,  held  that  an 
answer  which  stated  "  it  is  true  the  plaintiff  made  himself  invis- 
ible on  account  of  too  much  borrowing  and  not  paying,  that  is, 
ran  away,"  was  insufficient.1774  And  in  an  action  of  slander  in 
charging  the  plaintiff,  a  pawnbroker,  with  the  practice  of  duffing, 
i.  e.  of  doing  up  damaged  goods  and  pledging  them  again,  a 
plea  alleging  that  the  plaintiff  did  do  up  clivers  damaged  goods 
and  repledge  to  divers  persons,  &c,  was  held  bad  on  special 
demurrer,  for  not  stating  specific  instances  and  persons.1775  And 
where  the  libel  charged  an  attorney  with  general  misconduct, 
viz.  gross  negligence,  falsehood,  prevarication,  and  excessive 
bills  of  costs  in  the  business  he  had  conducted  for  the  defend- 
ant, a  plea  in  justification  repeating  the  same  general  charges, 
without  specifying  the  particular  acts  of  misconduct,  was,  upon 
demurrer,  held  insufficient.1776  A  declaration  alleged  that  plain- 
tiff was  cashier  to  Q.,  and  that  defendant,  in  a  letter  addressed 
to  Q.,  wrote,  "I  conceive  there  is  nothing  too  base  for  him 
(plaintiff)  to  be  guilty  of."  Plea,  in  justification,  alleged  that 
plaintiff  signed  and  delivered  to  defendant  an  I.  O.  U.,  and 
afterwards,  on  having  sight  thereof,  falsely  and  fraudulently 
asserted  that  the  signature  was  not  his;  and  the  plea  averred 
that  the  libel  was  written  and  published  solely  in  reference  to 
this  transaction.  Held  a  sufficient  justification,  as  the  libel 
must  be  understood  with  reference  to  the  subject-matter.1777 

§  358.  It  is  said  that  to  justify  a  charge  of  crime,  the  plea  or 
answer  must  specify  the  crime  with  certainty,1778  and  show  the 

1774  Wachter  v.  Quenzer,  29  N.  Y.  552. 

1775  Hickinbotham  v.  leach,  2  Dowl.  Pra.  Cas.  N.  S.  270;  10  M.  &  W.  361. 
To  an  action  for  slander  in  charging  the  plaintiff  with  stealing  corn  and  fodder 
from  various  persons,  a  plea  of  justification  leaving  blanks  for  the  dates  and 
amounts  would  be  bad  on  special  exception,  but  cannot  be  attacked  on  a  general 
exception.     (George  v.  Lemon,  19  Texas,  150.) 

17-'8  Holmes  v.  Catesby,  1  Taunt.  543. 

1777  Tirjhe  v.  Cooper,  7  El.  &  B.  639.  A  plea  of  justification  need  not  meet  the 
exact  words  of  the  libel,  but  may  adopt  the  sense  put  by  the  innuendo,  and  justify 
that.     (0'  Connor  v.  Wallen,  6  Irish  Com.  Law  Rep.  378.) 

1778  Nail  v.  Hill,  Pick.  325.     When  any  circumstance  is  .stated  which  describes 


442  PLEADING. 

commission  of  the  crime  with  as  miich  certainty  as  in  an  indict- 
ment for  such  crime.1779  In  an  action  of  slander  for  charging 
the  plaintiff  with  having  stolen  the  defendant's  shingles,  a  justifi- 
cation stating  that  the  plaintiff  had  sold  the  defendant  shingles 
without  authority,  and  afterward  denied  that  he  knew  anything 
respecting  them,  without  alleging  that  the  plaintiff  took  them 
privately  or  feloniously,  was  held  not  to  amount  to  a  charge  of 
larceny,  and  bad  as  a  justification.1780  To  a  charge  of  procur- 
ing an  abortion  it  was  held  not  a  sufficient  plea  that  the  plain- 
tiff assisted  in  procuring  an  abortion,  without  allegations  show- 
ing the  assistance  criminal.1781  Where  the  charge  was  that 
plaintiff  "  swore  falsely,"  without  reference  to  any  judicial  or 
other  proceeding  in  which  an  oath  could  have  been  lawfully 
administered,  a  plea  of  justification  pointing  the  plaintiff  to 
the  time,  place,  and  occasion  of  his  false  swearing,  and  alleging 
the  truth  of  the  words  spoken,  was  held  to  be  good.1782 '  Where 
the  charge  is  perjury,  the  plea  must  allege  not  only  that  the 
defendant  testified  to  what  was  untrue,  but  that  he  did  so 
knowingly,1783  and  that  the  matter  testified  to  was  material.1784 
If  the  charge  be  of  having  sworn  falsely  in  a  judicial  proceed- 
ing, without  the  necessary  averments  to  make  the  slander 
amount  to  an  imputation  of  perjury,  then  a  plea  of  justifica- 
tion, that-  the  plaintiff  did  swear  falsely  in  the  particular  pro- 


or  identifies  the  offence,  it  must  be  averred  for  the  purpose  of  showing  that  it  is 
the  same  offence.     (Sharpe  v.  Stephenson,  12  Ired.  348.) 

1779  Snyder  v.  Andrew,  6  Barb.  43;  Steele  v.  Phillips,  10  Humph.  461. 

1780  Shcpard  v.  Merrill,  13  Johns.  4*75. 

1781  Bissell  v.  Cornell,  24  Wend.  354. 

1782  Sanfordv.  Gaddis,  13  111.  329.  To  an  action  of  slander  for  charging  the 
plaintiff  with  having  forged  a  certain  instrument  of  writing,  the  truth  was  pleaded 
in  justification.  Held,  that  such  a  plea  could  not  be  objected  to  because  it  avers 
the  forged  instrument  to  be  in  the  plaintiff's  possession  or  destroyed.  Held,  also, 
that  in  a  plea  with  such  an  averment,  the  instrument  need  not  be  so  particularly 
described  as  would  be  otherwise  required.     (Kent  v.  David,  3  Blackf.  301.) 

1783  Chandler  v.  Robison,  1  Ired.  480. 

1784  McGough  v.  Rhodes,  1  Eng.  625;  Harris  v.  Woody,  9  Mis.  113.  It  is  no 
justification  to  an  insinuation  of  perjury  against  the  plaintiff  (who  had  sworn  to 


ANSWER.  443 

(seeding,  would  be  sufficient.1785  "Where  the  charge  is  that  the 
plaintiff  perjured  himself  on  a  particular  occasion,  the  justifica- 
tion must  be  confined  to  that.1786  Thus  in  slander  for  charging: 
the  plaintiff  with  committing  perjury  in  making  a  certain  state- 
ment, set  out  in  the  declaration,  as  a  witness  in  a  certain  case, 
the  defendant  pleaded  that  the  plaintiff  did  commit  perjury  by 
making  that  statement,  and  that  on  the  same  trial  he  commit- 
ted perjury  by  another  statement  made  by  him  on  the  same 
trial,  and  not  set  out  in  the  declaration.  On  demurrer  to  both, 
pleas,  the  first  was  held  good,  and  the  second  bad.1787  In  an 
action  for  slander  in  charging  the  plaintiff  with  perjury,  a  plea 
was  that  the  words  were  spoken  in  reference  to  the  testimony 
of  the  plaintiff  on  the  trial  of  a  cause,  and  after  setting  out  the 
parties,  the  nature  of  the  action,  and  the  questions  litigated,  it 
stated  the  evidence  given  on  such  trial,  and  averred  that  the 
words  were  spoken  in  reference  to  certain  parts  of  the  testimony 
{specifying  them)  which  were  not  material  to  the  issue,  and  that 
the  defendant  was  so  understood  by  the  hearers  ;  it  was  held  that 
the  words  in  italic  were  irrelevant.1788  A  plea  in  an  action  of 
slander  for  charging  the.  plaintiff  with  committing  a  felony, 
which  admits  the  speaking  of  the  words  charged,  but  avers 
other  facts  in  order  to  show  that  the  words  were  not  actionable, 
must  show  either  that  it  appeared  by  the  whole  of  defendant's 
statements,  in  the  same  conversation  and  company,  that  no  fel- 

an  assault  by  A.  B.  on  him),  that  it  did  appear  (which  was  the  suggestion  in  the 
libel)  from  the  testimony  of  every  person  in  the  room,  &c,  except  the  plaintiff, 
that  no  violence  had  been  used  by  A.  B.,  &c. ;  for  non  constat  thereby  that  what 
the  plaintiff  swore  was  false.  Neither  is  it  sufficient  in  a  justification  to  such  a 
libel,  where  the  extraneous  matter  was  so  mingled  with  the  judicial  account  as  to 
make  it  uncertain  whether  it  could  be  separated,  to  justify  the  publication  by  gen" 
eral  reference  to  such  parts  of  the  supposed  libel  as  purport  to  contain  an  account 
of  the  trial,  (fee,  and  that  the  said  parts  contain  a  just  and  faithful  account  of  the 
trial,  <fec.     (Stiles  v.  Kokes,  1  E.  R.  493.) 

171,5  Sanford  v.  Oaddis,  13  111.  329.  "  The  answer  should  set  forth  the  evidence 
and  what  was  actually  sworn  to  hy  the  plaintiff  at  the  time  alleged  "  (3  Ch.  PI. 
1039;  Yates'  Plead.  430;  Woodbeck  v.  Keller,  6  Cow.  122),  and  the  Code  of  New 
York  has  not  alterqpl  the  rule  in  this  respect.  (Tilsonv.  Clark,  45  Barb.  180; 
Wachter  v.  Quenzer,  29  N.  Y.  553.) 

nm  Palmer  v.  Ilavjld,  2  Barb.  210. 

1:"  Starry.  Harrington,  1  Smith,  350. 

"m  Allen  v.  Crofoot,  1  Cow.  46. 


411  PLEADING. 

ony  had  been  committed,  and  therefore  that  there  was  no 
charge  of  felony,  or  that  the  charge  was  made  known  to  the 
defendant  by  a  third  person,  named  in  the  plea,  before  he  ut- 
tered the  words.1789 

§  359.  If  a  material  part  of  a  plea  of  justification  fails,  the 
plea  fails  altogether.  Thus,  in  an  action  for  libel,  the  declara- 
tion set  out  the  whole  of  a  long  letter,  in  which  the  defendant 
imputed  to  the  plaintiff  improper  conduct  in  various  transac- 
tions which  had  taken  place  in  reference  to  a  ditch  of  the 
plaintiff's,  alleged  by  the  defendant  to  be  a  nuisance.  The  de- 
fendant pleaded  "  as  to  so  much  of  the  libel  as  related  to,  and 
charged  the  plaintiff  with,  the  keeping  of  the  nuisance,"  a 
plea  which  attempted  to  justify  every  sentence  in  the  letter. 
The  jury  found  that  the  plaintiff  kept  the  ditch  as  a  nuisance, 
but  negatived  the  improper  conduct  imputed  to  the  plaintiff  in 
the  letter.  Held  that,  upon  this  finding,  the  plaintiff  was  en- 
titled to  a  verdict.1790 

§  360.  In  some  States,  by  statute,  a  notice  or  specification 
of  the  defence  is  substituted  for  a  plea  in  answer.  Such  a  no- 
tice must,  it  seems,  contain  all  the  material  allegations  of  a 
plea  or  answer.1791 

§  361.  In  ]STew  York,  and  in  some  other  States,  by  statute 
the  defendant  may,  in  connection  with  a  general  denial,  and 
with  or  without  a  defence  of  justification,  set  up  in  his  answer 
mitigating  circumstances  to  reduce  the  amount  of  damages.1792 

17B9  Parker  v.  McQueen,  8  B.  Monr.  16. 

1790  Biddulph  v.  Chamberlayne,  6  Eng.  Law  &  Eq.  R.  347;  17  Q.  B.  351. 
Where  in  an  action  for  a  libel,  in  reference  to  an  advertisement  by  the  plaintiff 
tending  to  injure  the  defendants,  his  former  partners,  in  their  trade,  the  defendant 
justified,  and  relied  on  the  construction  of  such  advertisement,  as  set  out  in  the 
introductory  part  of  the  declaration ;  held,  that  that  not  supporting  the  infer- 
ences in  the  libel,  the  plaintiff  was  entitled  to  recover.  {Chubb  v.  Flannagan, 
6  C.  &  P.  431.) 

1791  Van  Derveer  v.  Sutphin,  5  Ohio,  N.  S.  293 ;  Brickett  v.  Davis,  21  Pick. 
404;  Shepardy.  Merrill,  13  Johns.  475  ;  Mitchell  v.  Borden^  Wend.  570;  Bissell 
v.  Cornell,  24  Wend.  354. 

1192  Code  of  Pro.  §  165 ;  Bush  v.  Prosser,  11  N.  Y.  347 ;  Bisby  v.  Shaw,  12  F. 
Y.  67;  Dolevin  v.  Wilder,  34  How.  Pra.  R.  488;  Van  Benschoten  v.  Yaple,  13  Id. 
97;  Heaton  v.  Wright,  10  Id.  79  ;  Ayres  v.  Covill,  18  Barb.  260. 


ANSWER.  445 

But  it  would  seem  that  a  defendant  cannot  set  up  ruitia-atinp- 
circumstances  alone,  without  any  other  answer  constituting  a 
defence,  because  an  answer  merely  setting  up  mitigating  cir- 
cumstances would  not  raise  an  issue.1793  Mitigating  circum- 
stances are  such  circumstances  as  the  well-established  rules 
of  law  allow  to  be  given  in  evidence  in  mitigation  of  dam- 
ages,1794 and  what  those  circumstances  are  will  be  considered 
under  the  head  of  Evidence.  The  question  whether  the 
facts  set  up  are  or  are  not  such  as  should  be  permitted  to 
be  given  in  evidence  in  mitigation,  is  properly  to  be  decided 
by  the  judge  on  the  trial  of  the  issue  of  fact.1795  And,  there- 
fore, although  a  plaintiff  may  move,  prior  to  the  trial,  to  strike 
out  as  irrelevant  or  redundant  allegations  of  facts  which  the 
defendant  avers  he  will  prove  on  the  trial  in  mitigation,1796 
yet  where  there  is  any  doubt  as  to  whether  or  not  the  facts  al- 
leged in  the  answer  would  be  received  in  evidence  on  the  trial, 
the  motion,  prior  to  the  trial,  should  be  denied.  Where  a  de- 
fendant seeks  to  mitigate  damages  by  pleading  facts  and  cir- 
cumstances which  induced  him,  at  the  time  of  making  the 
charge,  to  believe  it  true,  (1)  the  facts  and  circumstances  must 
be  such  as  would  reasonably  induce,  in  the  mind  of  a  person 
possessed  of  ordinary  intelligence  and  knowledge,  a  belief  of 
the  truth  of  such  charge;  (2)  it  must  also  appear  that  the 
defendant,  before  and  at  the  time  of  making  the  charge,  knew 
such  facts  and  circumstances,  and  (3)  that  he  was,  by  reason  of 
the  facts  and  circumstances  so  set  forth,  induced  to  believe  in 
the  truth  of  the  charge.  Unless  it  contain  all  these  allegations, 
it  may  be  stricken  out  on  motion.  Upon  a  motion  to  strike 
out,  as  redundant  or  irrelevant,  matter  set  up  in  mitigation, 
the  court  is  to  see  whether  such  matter  can,  by  any  possibility, 
be  received  in  evidence ;  if  it  can,  it  should  not  be  stricken 
out.     It  should  not  be  stricken  out  if  the  court  has  the  slight- 

1793  Newman  v.  Otto,  4  Sandf.  669;  Maretzek  v.  Cauldwell,  19  Abb.  Pra.  R.  40; 
but  see  Van  Bensehoten  v.  Yaplc,  13  How.  Pra.  Rep.  97. 
1784  Graham  v.  Jones,  1  Code  Rep.  N.  S.  181. 

1786  Newman  v.  Harrison,  1  Code  Rep.  N.  S.  184;  Fry  v.  Bennett,  5  Sandf.  54. 
1798  Van  Bensehoten  v.  Yaple,  13  How.  Pra.  Rep.  97. 


416  PLEADING. 

est  doubt  as  to  its  inadmissibility.1797  It  is  supposed  that,  in 
New  York,  the  defendant  on  the  trial  can  give  in  evidence 
only  such  matter  of  mitigation  as  he  has  set  up  in  his  answer, 
and  that  if  the  answer  does  not  contain  any  matter  of  mitiga- 
tion, no  evidence  in  mitigation  can  be  admitted  on  the  trial. 
On  an  assessment  of  damages,  where  there  is  no  answer,  matter 
in  mitigation  may  be  received.  Although  matter  in  mitiga- 
tion of  damages  is  not  a  subject  of  demurrer,  yet  if  set  up  in 
the  answer,  without  its  being  stated  that  they  are  set  up  in 
mitigation  merely,  the  plaintiff  may  infer  they  are  set  up  in 
bar,  and  may  demur  to  them.1798 

§  362.  As  in  other  actions,  the  defendant  may  demur  to  the 
complaint ;  but  Lord  Coke  said  it  was  "  an  excellent  point  of 
learning  in  actions  for  slander  "  not  to  demur,  but  to  take  advan- 
tage of  the  declaration  not  disclosing  a  cause  of  action,  either 
on  the  trial  or  by  motion  in  arrest  of  judgment.1799  It  has  been 
held  that,  though  a  count  in  slander  contain  some  words  which 
are  actionable  and  others  which  are  not,  the  defendant  cannot 
plead  as  to  the  former  and  demur  as  to  the  residue,  but  must  either 
plead  or  demur  to  the  whole  count.1800    But  again  it  has  been  held, 

1797  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488. 

1788  Newman  v.  Otto,  4  Sandf.  668;  Fry  v.  Bennett,  5  Id.  64;  Matthews  v. 
Beach,  Id.  256;  Meyer  v.  Schultz,  4  Id.  664;  Stanley  v.  Webb,  Id.  21. 

1799  If  the  words  laid  in  the  declaration  are  not  actionable,  the  defendant  must 
demur,  or  move  in  arrest  of  judgment.  (Dorsey  v.  Whijips,  8  Gill,  457.)  He  can- 
not avail  himself  of  the  defect  at  the  trial  (Blunt  v.  Zuntz,  Anthon,  180;  Boyd 
v.  Brent,  3  Brevard,  241)  to  nonsuit  the  plaintiff.  (Lumby  v.  Allday,  1  Cr.  &  J. 
301;  1  Tyrw.  21*7.)  It  seems  to  be  otherwise  in  New  York,  where,  on  the  trial, 
the  defendant  may  insist  that  the  complaint  does  not  disclose  a  cause  of  action. 
It  must  be  remembered  that  in  New  York  the  demurrer  is  general  only,  and  that 
the  special  demurrer  has  been  superseded  by  a  motion  to  make  definite  and 
certain. 

2600  Bronson,  J.,  Root  v.  Woodruff,  6  Hill,  420,  citing  as  to  libel,  Sterling  v. 
Sherwood,  20  Johns.  204 ;  Riggs  v.  Denniston,  3  Johns.  Cas.  198,  and  saying  the 
same  rule  had  been  applied  in  actions  for  slander,  though  not  reported ;  and  see 
Taylor  v.  Carr,  3  Up.  Can.  Q.  B.  Rep.  306.  It  is  conceded  that  the  rule  is  other- 
wise in  England,  and  Clarkson  v.  Lawson,  6  Bing.  587,  is  cited.  Held  that  a  de- 
fendant may  demur  to  a  part  of  the  words  laid  in  a  count  for  slander.  Abrams  v 
Smith,  8  Blackf.  95  ;    Wyant  v.  Smith,  5  Id.  294. 


DEMURRER.  447 

that  where  a  libel  contains  distinct  charges,  the  defendant  may 
plead  or  demur  to  particular  parts  of  it ;  jet  where  several 
statements  tend  to  one  conclusion  or  imputation,  it  is  not  per- 
missible to  select  and  deal  separately  with  one,  either  by  plea 
or  demurrer.1801  A  defendant  cannot  single  out  some  of  the 
words  in  a  declaration  and  demur  to  them.1802  If  a  count  by 
husband  and  wife  contains  words  actionable  per  se,  as  well  as 
others  spoken  of  the  wife,  the  defendant  cannot  demur,  and 
may,  on  the  trial,  object  that  the  action  for  the  latter  words 
cannot  be  maintained  by  both.1803  In  an  action  for  libel  where 
the  answer  contained  (1)  a  denial  of  the  publication,  (2)  a  jus- 
tification, the  plaintiff  demurring  to  the  answer,  specifying  only 
objections  to  the  matter  of  justification,  judgment  was  given 
for  the  plaintiff  on  the  demurrer ;  held  that  the  denial  remained 
on  the  record,  and  raised  an  issue  of  fact.1804 

1801  Eaton  v.  Johns,  1  Dowl.  Pra.  Cas.  N.  S.  602;  and  see  McGregor  v.  Gregory, 
2  Id.  769;  11  M.  &  W.  289. 

J80J  Taylor  v.  Carr,  3  Up.  Can.  Q.  B.  Rep.  306. 

1603  Beach  v.  Ranney,  2  Hill,  309. 

,B°4  Matthews  v.  Beach,  4  Selden,  173  ;  but  see  Parrett  Nav.  Co.  v.  Slower,  8 
Dowl.  Pra.  Cas.  405. 


CHAPTER  XV. 


VARIANCE. — AMENDMENT. 

Allegation  of  pleadings  and  proof  should  correspond.  Va- 
riance in  Neio  York.  General  rules  as  to  variance.  Im- 
material variance.     Material  variance.     Amendment. 

§  363.  The  general  rule  as  to  variance  is  that  the  allegations 
of  the  pleading  and  the  proof  must  correspond,  otherwise  there 
is  a  variance,  and  the  plaintiff  fails;1805  but  now  in  New  York 
it  is  enacted  by  statute  that  "  no  variance  between  the  allega- 
tion in  a  pleading  and  the  proof  shall  be  deemed  material  un- 
less it  have  actually  misled  the  adverse  party  to  his  prejudice," 
and  when  the  variance  is  shown  to  be  material,  the  court  may 
order  an  amendment.1806  The  following  decisions  upon  variance 
are  in  cases  not  within  the  Code  of  New  York. 

§  364.  Ordinarily  it  is  sufficient  if  the  words  proved  corre- 
spond substantially  .with  those  alleged.1807  But  although  any 
mere  variation  of  the  form  of  expression  is  not  material,  the 
words  alleged  cannot  be  proved  by  showing  that  the  defendant 
published  the  same  meaning  in  different  words,1808  even  if  equiv- 
alent and  of  similar  import.1809     A  count  for  slanderous  words 

1805  In  actions  of  slander  and  libel  the  language  charged  must  be  proved  as 
laid.  (Birch  v.  Benton,  26  Mis.  (5  Jones),  153;  Horton  v.  Reavis,  2  Murph.  380.) 
A  variance  is  fatal.  (Stanjleld  y.  Boyer,  6  Har.  &  J.  248;  Winter  v.  Donovan,  8 
Gill,  370;  Harris  v.  Lawrence,  1  Tyler,  156.) 

1806  Code  of  Proc.  §"  169.  As  to  amendment  of  variance  in  Indiana  (Proctor  v. 
Owens,  18  Ind.  21). 

1807  Coghill  v.  Chandler,  33  Mis.  115;  Smith  v.  Hollister,  3  Shaw  (Verm.)  695; 
Taylor  v.  Moran,  4  Mete.  (Ky.)  127;  Williams  v.  Minor,  18  Conn.  464. 

1808  Smith  v.  Hollister,  3  Shaw  (Verm.)  695. 

1809  Wilborn  v.  Odell,  29  111.  456;  Taylor  v.  Moran,  4  Mete.  (Ky.)  127;  Norton 
v.  Gordon,  16  111.  38.     It  is  not  sufficient  to  prove  words  equivalent  to  those  al- 


VARIANCE.  449 

spoken  affirmatively  is  not  supported  by  proof  that  thev  were 
spoken  by  way  of  interrogation.1810  Proof  of  words  spoken  in 
the  second  person  will  not  support  counts  for  words  spoken  in 
the  third  person,  and  vice  versa.1811 

§  365.  The  plaintiff  need  not  prove  all  the  words  laid,  but 
he  must  prove  enough  of  them  to  sustain  the  action.1812  It  is 
sufficient  if  the  gravamen  of  the  charge  as  laid  is  proved,1813 
and  unless  the  additional  words  qualify  the  meaning  of  those 
proved  so  as  to  render  the  words  proved  not  actionable,  the 
proof  is  sufficient.1814     It  is  necessary  for  the  plaintiff  to  prove 

leged.  (Moore  v.  Bond,  4  Blackf.  458;  Slocumv.  Kuykendcdl,  1  Scam.  187;  Olm- 
stead  v.  Miller,  1  Wend.  506 ;  Watson  v.  Musie,  2  Mis.  29 ;  Fox  v.  Vanderbeck,  5 
Cow.  513;  Armitage  v.  Dunster,  4  Doug.  291.) 

1810  Barnes  v.  Holloway,  8  T.  R.  150;  Sanford  v.  Gaddis,  15  111.  228 ;  King  v. 
Whitley,  7  Jones  Law  (N.  C.)  529.  If  in  an  action  of  slander  the  words  be  proved 
to  be  spoken  affirmatively  as  they  are  laid,  the  charge  is  supported,  though  it  ap- 
pear that  they  were  spoken  in  answer  to  a  question  put  by  a  third  person.  (Jones 
v.  Chapman,  5  Blackf.  88.) 

1811  Cock  v.  Weatherby,  5  Smedes  &  Marsh.  333 ;  Miller  v.  Miller,  8  Johns.  74  ; 
Stannardv.  Harper,  5  M.  &  Ry.  295;  M'Connell  v.  M'Coy,  7  S.  <fc  R.  223;  Cul- 
bertson  v.  Stanley,  6  Blackf.  67;  Williams  v.  Harrison,  3  Mis.  411 ;  Wolf  v.  Rodi- 
fer,  Har.  <fe  J.  409 ;  Avarillo  v.  Rogers,  Bull.  N.  P.  5 ;  Rex  v.  Berry,  4  T.  R.  217  ; 
Phillips  v.  Odell,  5  Up.  Can.  Q.  B.  Rep.  0.  S.  483 ;  Sanford  v.  Gaddis,  15  111.  228. 
Evidence  of  the  words,  "  You  are  a  broken  down  justice,"  does  not  support  an  in- 
dictment for  speaking  of  the  magistrate  the  words,  "  He  is  a  broken  down  justice." 
(4  T.  R.  217;  but  see  Cro.  Eliz.  503.)  Words  proved  to  have  been  spoken  in  the 
second  person,  sustain  a  count  for  slander  in  which  the  words  are  in  the  third 
person.     (Daily  v.  Gaines,  1  Dana,  529;  Huffman  v.  Shumate,  4  Bibb,  515.) 

1612  Fox  v.  Vanderbeck,  5  Cow.  513;  Purple  v.  Horton,  13  Wend.  9;  Nestle  v. 
Van  Slyck,  2  Hill,  282;  Skinner  v.  Grant,  12  Verm.  456;  Scott  v.  McKinnish,  15 
Ala.  662;  Hancock  v.  Stephens,  11  Humph.  507;  Iseley  v.  Lovejoy,  8  Blackf.  462  ; 
Sanford  v.  Gaddis,  15  HI.  228;  Whiting  v.  Smith,  13  Pick.  364;  Loomis  v.  Swick, 

3  Wend.  205 ;  Wlieeler  v.  Robb,  1  Blackf.  330 ;'  Chandler  v.  Holloway,  4  Port.  1 7 ; 
Berry  v.  Dryden,  7  Mis.  324  ;  Coghill  v.  Chandler,  33  Mis.  115;  Geary  v.  Connop, 
Skin.  333. 

1813  Hersh  v.  Ringwalt,  3  Yeates,  508 ;  Wilson  v.  Natrous,  5  Yerg.  211 ;  Cheadle 
v.  Buell,  6  Ham.  67 ;  Pursell  v.  Archer,  Peck,  317;  Miller  v.  Miller,  8  Johns.  74  ; 
Cooper  v.  Marlow,  3  Mis.  188;  Barry.' Gaines,  3  Dana,  258;  McClintock  v:  Crick, 

4  Iowa,  453;  Baldwin  v.  Soule,  6  Gray,  321;  Scott  v.  McKinnish,  15  Ala.  662; 
Bassett  v.  Spofford,  11  N.  Hamp.  127;  Merrill  v.  Peas/ee,  17  N".  Hamp.  540. 

1814  Sanford  v.  Gaddis,  15  111.  228;  Merrill  v.  Peaslee^  17  N.  Hamp.  540; 
Smart  v.  Blanchard,  42  N.  Hamp.   137.      The  plaintiff  need  not  prove  all  the 

29 


450  VARIANCE. 

some  of  the  words  precisely  as  charged,  but  not  all  of  them,  if 
those  proved  are  in  themselves  slanderous ;  but  he  will  not  be 
permitted  to  prove  the  substance  of  them  in  lieu  of  the  precise 
words.1815  Where  the  whole  of  the  words  laid  in  any  one  count 
constitute  the  slanderous  charge,  the  whole  must  be  proved. 
But,  where  there  are  distinct  slanderous  allegations  in  any 
count,  proof  of  any  of  them  is  sufficient.1816  The  plaintiff  may 
prove  more  words  than  are  set  forth  in  the  complaint,  provided 
the  additional  words  do  not  change  the  meaning  of  those  set 
forth.1847 

§  366.  An  action  for  slanderous  words  imputing  to  the 
plaintiff  misconduct  as  a  constable,  is  not  sustained  by  proving 
words  imputing  misconduct  to  him,  as  an  agent  of  the  execu- 
tive of  one  State,  for  the  arrest,  in  another  State,  of  a  fugitive 
from  justice.1818  Where  the  words  were  alleged  to  have  been 
spoken  of  and  concerning  the  plaintiff  as  treasurer  and  col- 
lector of  certain  tolls,  and  the  innuendo  corresponding  thereto, 
and  the  proof  was  only  of  his  being  treasurer,  and  he  failed  in 
making  out  his  appointment  to  be  collector ;  held,  that  for 
want  of  such  proof  he  was  properly  nonsuited.1819  For  words 
spoken  of  a  physician,  alleging  that  he  was  not  entitled  to  prac- 

words  set  forth  in  the  declaration,  provided  he  proves  enough  to  sustain  his  cause 
of  action,  and  the  words  proved  do  not  differ  in  sense  from  those  alleged.  (Nichols 
v.  Hayes,  13  Conn.  155;  Nestle  v.  Van  Slyck,  2  Hill,  282;  McKeev.  Ingalh,  4 
Scam.  30;  Scott  v.  Renforth,  Wright,  55.) 

1816  Easley  v.  Moss,  9  Ala.  266 ;  Morgan  v.  Livingston,  2  Rich.  573 ;  Creelman 
v.  Marks,  7  Blackf.  281 ;  Patterson  v.  Edwards,  2  Oilman,  720.  Although  the 
libel  read  in  evidence  contained  matter  in  addition  to  that  set  out  in  the  declara- 
tion, there  is  no  variance,  if  the  additional  part  do  not  alter  the  sense  of  that 
which  is  set  out.  (M'  Coombs  v.  Tuttle,  5  Blackf.  431 ;  Cooper  v.  Marlow,  3  Mis. 
188 ;  Rutherford  v.  Evans,  6  Bing.  451 ;  4  Car.  &  P.  74.)  Thus,  in  Tabart  v.  Tip- 
per, 1  Camp.  350,  the  rhymes  (see  ante,  note  1320)  were  set  out  in  the  declaration 
without  the  line  in  Latin  which  followed  them ;  it  was  held  the  omission  was  im- 
material. 

1816  Flower  v.  Pedley,  2  Esp.  491. 

1817  Wilborn  v.  Odell,  29  111.  456. 

1818  Kinney  v.  Nash,  3  Corns.  177. 

1819  Sellers  v.  Killen,  4  B.  &  Cr.  655  ;  7  D.  &  Ry.  121. 


VARIANCE.  451 

tice  as  such ;  held,  first,  that  the  plaintiff  was  bound  to  prove 
not  only  that  he  practised  as  a  physician,  but  that  he  practised 
lawfully  }m  In  an  action  for  these  words  spoken  by  defendant 
of  the  plaintiff  in  his  profession  of  a  physician :  "  Dr.  S.  has 
upset  all  we  have  done,  and  die  he  [the  patient]  must."  It 
was  proved  that  the  plaintiff  had  practised  several  years  as  a 
physician,  and  having  been  called  in  during  the  absence  of  a 
physician,  who  with  the  defendant  attended  the  patient,  the  de- 
fendant, as  apothecary,  made  up  the  medicines  prescribed  by 
the  plaintiff  for  the  patient  in  question.  Quaere,  whether,  on 
this  declaration,  it  was  necessary  for  the  plaintiff  to  produce  a 
diploma,  or  other  direct  evidence  that  he  had  taken  a  degree  in 
physic,  in  order  to  maintain  the  action.1821  Where  the  declara- 
tion alleged  the  plaintiff  to  be  an  attorney,  and  that  the  words 
were  spoken  of  him  in  his  professional  character,  the  words 
being  actionable  without  any  reference  to  such  character ;  held, 
that  mere  proof  of  his  having  been  admitted,  without  showing 
that  he  had  practised  or  had  taken  out  his  certificate,  was  not 
a  fatal  variance.1822 

§  367.  The  following  have  been  held  to  be  immaterial  vari- 
ances :  the  date  of  publication  ; 1823  a  difference  in  the  tense  of 
the  words,  as  had  for  has  ; 1824  the  transposition  of  the  names  of 
the  parties  to  the  suit,  as  a  witness  in  which  the  plaintiff  was 
charged  with  having  sworn  falsely  ; 1825  alleging  that  the  offence 

1620  Collins  v.  Carnegie,  3  Nev.  <fe  M.  703 ;  1  Ad.  &  El.  695. 

1821  Smith  v.  Taylor,  1  N.  R.  196.  In  an  action  by  an  apothecary,  what  is  suf- 
ficient proof  of  his  qualification  as  such.  (  Wogan  v.  Somerville,  1  Moore,  102;  *7 
Taunt.  401.) 

1822  Lewis  v.  Walter,  3  B.  <fe  Cr.  138  ;  4  D.  &  R.  810. 

1623  Thrall  v.  Smiley,  9  Cal.  529  ;  Gates  v.  Bowher,  18  Verm.  (3  Washb.)  23  ; 
Commonwealth  v.  Varney,  10  Cush.  402 ;  Potter  v.  Tfiompson,  22  Barb.  89. 

1824  Wilborn  v.  Odell,  29  111.  456. 

1626  Teague  v.  Williams,  7  Ala.  844.  In  an  action  of  slander,  the  plaintiff  al- 
leged that  the  slanderous  words  were  spoken  relative  to  testimony  of  the  plaintiff 
in  a  suit  in  which  S.  was  plaintiff  and  H.  defendant.  Held,  that  evidence  aliunde 
was  admissible  to  show  that  the  record  of  an  action  by  S.  and  W.  against  H.  was 
the  action  referred  to  in  the  declaration,  and  that  there  was  no  variance.  (Hibler 
v.  Servoss,  6  Mis.  24.) 


452  VARIANCE. 

was  committed  on  Saturday  instead  of  Sunday ; 1826  a  discrep- 
ancy in  the  title  of  a  paper ; 1827  where  it  was  alleged  that  the 
publication  was  in  the  presence  of  B.  held  not  necessary  to 
prove  such  allegation.1828  On  an  allegation  that  the  defendant 
charged  the  plaintiff  with  perjury  in  a  suit  of  A.  and  B.,  v.  C. 
and  D.,  the  variance  is  not  fatal  if  it  be  shown  that  the  charge 
was  made  in  reference  to  the  case  of  a  cross-bill,  by  one  of  the 
defendants  in  such  case,  against  the  complainant  and  co-defend- 
ants.1829 And  where  the  declaration  on  a  libel  stated  that  cer- 
tain prosecutions  had  been  preferred  against  M.,  and  that,  "  in 
furtherance  of  such  proceedings,"  certain  sums  of  the  parish 
funds  had  been  appropriated  to  discharge  the  expenses  ;  but 
the  libel  charged  the  money  to  have  been  so  applied  after  the 
proceedings  had  terminated  :  held,  that  it  being  immaterial  to 
the  defamatory  character  of  the  libel  when  the  money  was  so 
applied,  the  variance  was  immaterial.1830  So  a  slight  variance 
in  the  names  of  the  defendants  in  the  indictment,  as  set  forth 
in  the  declaration  and  contained  in  the  record,  may  be  cured 
by  parol  proof  of  the  identity  of  the  persons.1831  Where  the 
words  charged  in  one  count  were,  "  He  is  a  thief,"  and  in  an- 
other, "He  is  a  thief,  and  stole  the  hay  and  hay-seed  from  D.'s 
barn,"  and  the  proof  was  that  the  defendant  said,  at  one  time, 
that  he  was  "  a  thief,  and  stole  the  hay-seed  out  of  the  barn," 
and  at  another  that  he  had  "  stolen  hay  and  hay-seed  that  had 


1826  Sharpe  v.  Stephenson,  12  Ired.  348. 

1821  The  State  v.  Jeandell,  5  Harring.  475. 

1828  Goodrich  v.  Warner,  21  Conn.  432. 

1B29  Wiley  v.  Campbell,  5  Monr.  560.  A  charge  of  false  swearing,  in  a  pro- 
ceeding between  A.  and  B.,  held  sustained  by  proof  of  a  proceeding  between  A. 
and  B.  and  wife.     (Dowd  v.  Winters,  20  Mis.  (5  Bennett)  361. 

1830  May  v.  Brown,  3  B.  &  Cr.  113  ;  4  D.  &  R.  670.  It  is  a  general  rule,  that 
the  variance  between  the  allegation  and  the  proof  will  not  defeat  a  party,  unless 
it  be  in  respect  of  matter  which,  if  pleaded,  would  be  material.  (Id.)  Where 
the  words  are  actionable  without  the  inducement,  the  insertion  of  what  is  not 
material  and  not  proved,  does  not  occasion  a  variance  of  which  advantage  can  be 
taken.  (Cox  v.  Thomason,  2  Cr.  &  J.  361;  2  Tyrw.  411.)  And  see  Bourke  v. 
Warren,  2  C.  <fe  P.  307. 

'-31  Hamilton  v.  Langley,  1  M'Mullan,  498. 


VARIANCE. 


453 


belonged  to  D,"  it  was  held  that  the  words  charged  were  suffi- 
ciently proved.1832 

§  368.  The  following  are  additional  instances  of  immaterial 
variance : 


ALLEGATION. 

He  stole  hogs. 

The  girl  that  hired  with  us. 

A.  committed  forgery. 

"We  supposed  that  they  had 
become  aware  of  the  fact. 

He    stole    my    staves    and 
nails. 

She  has  had  a  bastard  child. 


You  are  perjured. 

Mr.  K.'s  wife  is  a  whore. 


PROOF. 

He  stole  a  hog.1833 

The  girl    that    lived  with 


us.1004 

A.  and  B.  committed  forg- 
ery.1835 

We  supposed  that  they  had 
by  this  time  become  aware  of 
the  tact.1836 

He  is  a  damned  rogue,  for 
he  stole  my  staves  and  nails, 
and  I  can  prove  it.1837 

If  I  have  not  been  misin- 
formed, she  had  a  bastard 
child.1838 

Are  you  not  afraid,  as  you 
have  perjured  yourself  ? 1839 

She  (Mr.  K.'s  wife)  is  a 
whorish  bitch.1840 


,832  Williams  v.  Miner,  18  Conn.  464. 

1833  Barr  v.  Gains,  3  Dana,  258. 

1834  Robinett  v.  Ruby,  13  Md.  95. 

1835  Nichols  v.  Hayes,  13  Conn.  155. 

1836  Smiley  v.  McDougal,  10  Up.  Can.  Q.  B.  Rep.  113. 
1887  Pasley  v.  Kemp,  22  Miss.  (1  Jones)  409. 

1838  Treat  v.  Browning,  4  Conn.  408. 

1839  Commons  v.  Walters,  1  Port.  377. 

1840  Scott  v.  McKinnish,  15  Ala.  662. 


454 


VARIANCE. 


ALLEGATION. 

You  stole  one  of  my  sheep. 

Riot. 

Poppenheim  is  a  very  bad 
man;  he  is  a  calf- thief,  and 
the  records  of  the  court  will 
prove  it. 

Your  (plaintiff's)  house  is  a 
bawdy  house,  and  no  respecta- 
able  person  will  live  in  it. 


Ware  Hawk,  you  must  take 
care  of  yourself  there,  mind 
what  you  are  about. 


PEOOF. 

You  stole  my  sheep  and 
killed  it.im 

Riot  and  assault,1842 

Poppenheim  is  a  very  bad 
man  ;  he  is  a  calf- thief ;  he 
has  been  indicted  for  calf-steal- 
ing, and  the  records  of  the 
court  will  prove  it.1843 

You  (plaintiff's  wife)  are  a 
nuisance  to  live  beside  of.  You 
are  a  bawd,  and  your  house 
no  better  than  a  bawdy 
house.1844 

Ware  Hawk,  you  must  take 
care  of  yourself  there.1845 


§  369.  It  was  held  a  material  variance  where  the  declara- 
tion alleged  that  the  defendant  charged  the  plaintiff  with  a 
crime,  and  the  proof  disclosed  merely  that  defendant  said  he 
supposed  the  plaintiff  to  be  guilty  of  such  crime.1846  Where 
the  declaration  charged  the  defendant  with  speaking  slanderous 
words,  and  the  proof  was  that  he  procured  another  to  speak 
them ; 1847  where  the  declaration  charged  the  defendant  with 

1841  Robinson  v.  Wallis,  2  Stark.  Rep.  194.  The  word  it  showing  that  only- 
one  sheep  was  meant. 

1842  Hamilton  v.  Langley,  1  M'Mullan,  498. 
im3  p0ppenheim  v.  Wilkes,  1  Strob.  275. 

1844  Huckle  v.  Reynolds,  1  C.  B.  N.  S.  114. 

1845  Orpwood  v.  Barkes,  4  Bing.  261. 

1846  Dickey  v.  Andros,  32  Verm.  (3  Shaw),  55.  Where,  in  case  for  a  malicious 
prosecution,  the  declaration  alleged  that  an  express  charge  of  felony  was  made 
against  plaintiff,  but  it  appeared  that  the  defendant  had  only  deposed  to  a  suspi- 
cion that  he  had  committed  it,  held  no  variance,  it  being  the  only  meaning  which 
could  be  imputed  to  the  accusation.     (Davis  v.  Noake,  6  M.  &  S.  29.) 

3847  Watts  v.  Greenlee,  1  Dev.  210. 


VARIANCE.  455 

speaking  defamatory  words,  and  the  proof  was  that  defendant 
signed  a  written  complaint  charging  the  plaintiff  with  larce- 
ny ; im  where  the  declaration  charged  the  defendant  with  say- 
ing that  plaintiff,  a  single  woman,  had  had  a  child,  and  the 
proof  was  that  defendant  said,  in  his  opinion  plaintiff  was 
pregnant  with  child.1849  An  allegation  of  slander  as  to  the 
cleanliness  of  the  plaintiff's  person  (a  cook),  as  of  the  defend- 
ant's actual  knowledge,  held,  not  supported  by  proof  of  the 
words  as  to  the  defendant's  belief  or  understanding  only.1850  An 
allegation  that  words  were  spoken  concerning  three  plaintiffs 
(partners)  in  their  joint  trade,  is  not  supported  by  proof  that 
the  words  were  addressed  to  one  of  the  plaintiffs  person- 
ally.1851 Where  the  words  set  forth,  in  their  ordinary  sense, 
import  a  charge  of  crime,  if  they  are  proved  to  have  been  so 
spoken  in  connection  with  other  words  as  to  rebut  the  idea  of 
criminality,  there  is  a  fatal  variance  ; 1852  and  where  an  innuendo 
gives  a  specific  meaning  to  the  language  published,  that  mean- 
ing must  be  proved,  or  there  will  be  a  variance.1853  Where  the 
declaration  in  an  action  of  slander  alleges  that  the  words  spoken 
were  in  reference  to  an  oath  taken  by  the  plaintiff  before  the 
register  and  receiver  of  a  land  office,  touching  the  entry  of  land, 
proof  of  an  oath  taken  before  a  notary  public  concerning  the 
same  subject-matter,  does  not  support  the  allegation ; 1854  and 
where  the  declaration  for  maliciously  charging  the  plaintiff  with 
felony  stated  that  the  defendant  went  before  R.  C.  Baron 
Waterpark,  of  Waterforh,  in  the  county  of,  &c,  and  the  proof 
was  that  his  title  was  Baron  Waterpark,  of  Waterpark,  &c. ; 

]"48  Hill  v.  Miles,  9  N.  Hamp.  9. 

1849  Payson  v.  Macomber,  3  Allen  (Mass.),  69.  A  count  in  slander,  alleging  that 
the  defendant  charged  upon  the  plaintiff  an  act  of  fornication,  witnessed  by  a  par- 
ticular person,  is  not  sustained  by  proof  of  words  charging  an  act  of  fornication 
witnessed  by  another  person,  or  by  proof  of  words  implying  a  charge  of  habitual 
fornication  and  lewdness  with  the  person  named  in  the  declaration.     (Id. ) 

1850  Cook  v.  Stokes,  1  M.  <fc  Rob.  237. 

1861  Solomons  v.  Medex,  1  Stark.  Cas.  191. 

1852  Edgerly  v.  Swam,  32  N.  Hamp.  478. 

1958  Williams  v.  Stott,  1  Cr.  &  M.  675 ;  3  Tyrw.  688. 

18M  Phillips  v.  Beene,    16  Ala.  720. 


456  VARIANCE. 

held  a  fatal  variance.1855  Where  the  libel  given  in  evidence 
contained  two  references  (showing  it  to  be  the  language  of  a 
third  person  respecting  the  plaintiff),  and  which  were  omitted 
in  the  libel  set  forth  in  the  declaration ;  held,  that  the  meaning 
of  the  paragraphs  being  different,  the  variance  was  fatal.1856 
An  action  upon  a  libel  charging  in  one  count  that  the  defend- 
ant published  it  as  purporting  to  be  a  letter  from  A.  to  B.,  and 
in  another  charging  generally  that  the  defendant  published  the 
libellous  matter ;  held  not  to  be  sustained  by  proof  of  a  publi- 
cation wherein  the  defendant  stated  that  in  a  debate  in  the 
Irish  House  of  Commons  several  years  before,  the  attorney- 
general  of  Ireland  had  read  such  a  letter,  and  then  stating  the 
libellous  matter  as  said  by  him  in  commenting  upon  that  letter ; 
for  it  was  said  the  characters  of  the  several  libels  were  essentially 
different,  though  the  slander  imputed  might  be  the  same.1857 

§  370.  An  indictment  for  a  libel  charged  that  the  defend- 
ant set  up,  in  public,  a  board  on  which  a  painting  or  picture  of 
a  human  head,  with  a  nail  driven  through  the  ear,  and  a  pair 
of  shears  hung  on  a  nail,  and  the  proof  was  that  a  human  head, 
showing  a  side  face,  with  an  ear,  a  nail  driven  through  the  ear, 
and  a  pair  of  shears  hung  on  the  nail,  was  inscribed  or  cut  in 
the  board  by  means  of  some  instrument,  but  was  not  painted. 
Held,  that  there  was  a  fatal  variance  between  the  allegation 
and  the  proof,  and  that  the  defendant  must  be  acquitted.1858  In 
an  action  of  slander,  one  of  the  counts  charged  the  defendant 
with  having  made  a  voluntary  affidavit,  and  caused  certain  false 
statements  to  be  written  therein,  to  wit :  "  that  there  was  a 
certain  quantity  of  American  soap,  which  to  his  certain  knowl- 
edge was  sold  at  Curagoa  (by  the  plaintiff)  at  six  dollars,  cur- 
rent money."  The  affidavit,  as  offered  in  evidence  by  the 
plaintiff,  stated  the  same  words,  except  that  the  words  "per 
box "  were  added  after  the  words  "  six  dollars."     Held,  that 

1855  Wallers  v.  Mace,  2  B.  &  A.  *756 :   1  Ch.  507. 

1856  Tabartv.  Tipper, I  Camp.  353. 

1867  Bell  v.  Byrne,  13  East,  554. 

1868  The  State  v.  Powers,  12  Ired.  5. 


VARIANCE. 


457 


the  variance  was  fatal.1859  The  averment  was  that  A.,  before 
a  magistrate,  maliciously  charged  B.  with  felony ;  the  informa- 
tion contained  a  mere  charge  of  tortious  conversion,  upon 
which  a  warrant  for  felony  was  improperly  founded.  The  va- 
riance was  held  fatal.1860  If  a  declaration  count  upon  a  charge 
of  perjury  upon  a  particular  occasion,  proof  of  a  general  charge 
of  perjury  is  inadmissible  to  sustain  it.1861 

§  371.  The  following  are  additional  instances  of  material 
variance : 


ALLEGATION. 


Whore. 


That  the  plaintiff,  who  was 
postmaster  at  F.,  embezzled 
certain  papers. 


PROOF. 

Strumpet.1862 

Defendant  had  no  doubt  the 
papers  were  embezzled  at  Fv 
or  he  thought  the  papers  were 
embezzled  at  F.1863 


L.  is  pregnant  and  gone  with         Have  you  heard   anything 
child  seven  months.  about  L.'s  being  pregnant  by 

Dr.  P.1864 


1859  Wilson  v.  Mitchell,  3  Har.  <fc  J.  91. 
50  Tempest  v.  Chambers,  1  Stark.  Rep.  67.  In  slander  the  allegation  was,  He 
burnt  Knox's  barn.  The  proof  was  that  defendant  added,  Because  one  of  the  girls 
would  not  marry  him.  It  was  doubted  if  a  variance.  Where  the  inducement  was  of 
a  conversation  of  Mr.  Knox's  barn  which  had  been  burnt,  and  that  defendant  said 
of  plaintiff  and  of  said  barn,  He  burnt  Knox's  barn ;  proof  that  defendant  spoke 
the  words,  He  burnt  Knox's  barn,  without  proof  of  the  colloquium  respecting  the 
burning  of  Mr.  Knox's  barn,  was  held  insufficient.  (Manly  v.  Cory,  3  U.  C.  Q.  B. 
R.  380.) 

J861  Emery  v.  Miller,  1  Denio,  208. 

1862  Williams  v.  Bryant,  4  Ala.  44;  contra,  see  Cook  v.  Wingfield,  1  Stra.  555  ; 
ante,  notes  641,  1071.  A  charge  of  being  "  a  whore  and  a  common  prostitute"  is 
not  supported  by  proof  of  words  amounting  to  a  general  charge  of  unchastity. 
(Bohcrty  v.  Brown,  10  Gray  (Mass.)  250.) 

ie63  Taylor  v.  Knecland,  1  Doug.  67. 

18M  Long  v.  Fleming,  2  Miles,  104. 


458 


VARIANCE. 


ALLEGATION. 

Dr.  F.  is  not  a  physician,  but 
a  twopenny  bleeder. 


PROOF. 

If  Dr.  F.  is  a  twopenny 
physician,  I  am  none.  I  am 
a  regular  graduate  and  no 
quack.1865 


He  burnt  my  barn,  innuen-         There  is  the  man  that  burnt 
do  feloniously  burnt.  my  barn  ;  if  he  was  not  guilty 

of  it  he  would  not  carry  pis- 
tols.1866 

He  stole  wheat  last  winter.  He,  defendant,  said  he,  plain- 

tiff, stole  away  the  wheat  in 
the  night,  and  I  was  well 
aware  of  it,  and  would  have 
put  him  in  jail  for  doing  it.1867 

That  other  persons  would 
have  recommended  the  plain- 
tiff, and  that  the  persons 
named  in  the  declaration 
would  have  employed  plaintiff 
on  such  recommendation.1868 

You  have  sworn  false.1869 
She  is  a  bad  one.1870 


That  persons  who  would 
otherwise  have  retained  and 
employed  the  plaintiff,  wholly 
declined  and  refused  so  to  do. 


You  swore  false. 


She  is  a  great  thief. 

That  plaintiff  then  had  three         That  plaintiff  had  given  out 
or  four  vessels  in  the  river.  that  there  were  three  or  four 

vessels  in  the  river.18'1 


mi  Foster  v.  Small,  3  Whart.  138. 

ieK  Van  Keurin  v.  Griffis,  2  Up.  Can.  Q.  B.  Rep.  423. 

1667  McNaught  v.  Allen,  8  Up.  Can.  Q.  B.  Rep.  304. 

jef6  Sterry  x.  Foreman,  2  Car.  &  P.  592. 

1669  Sanfordv.  Gaddis,  15  111.  228. 

1870  Hancock  v.  Winter,  2  Marsh.  502. 

1871  Wood  v.  Adams,  6  Bing.  481 ;  4  C.  &  P.  268. 


VARIANCE. 


459 


ALLEGATION. 

This   is  my  umbrella.     He 
stole  it  from  my  back-door. 

Stolen. 

You  robbed  the  mail. 


Plaintiff  had  sworn  a  lie,  and 
it  is  in  him,  for  he  had  sworn 
what  he,  defendant,  could 
prove  to  be  a  point-blank  lie. 

You  would  steal,  and  you 
will  steal. 

I,  defendant,  was  summoned 
as  a  grand  juror  at  last  court, 
but  I  got  the  court  to  excuse 
me  from  serving,  for  if  I  had 
served  I  would  have  been 
bound  to  have  indicted  W.  for 
theft. 

Mismanagement  or  igno- 
rance. 

There  was  a  collusion  be- 
tween A.,  B.,  and  C. 


PROOF. 

It  is  my  umbrella.  He  stole 
it  from  my  back-door.1872 

Taken  out  of  my  yard.1873 

I  am  not  like  you,  running 
about  the  country  with  forged 
deeds  and  robbing  the  mail,  as 
you  did.1874 

Plaintiff  had  sworn  off  a 
just  account,  and  that  he,  de- 
fendant, could  or  would  prove 

it.1875 

A  man  that  would  do  that 
would  steal.1876 

If  I,  defendant,  had  served 
on  the  grand  jury,  I  would 
have  been  bound  to  have  in- 
dicted Mr.  Street,  the  plain- 
tiff1877 


Ignorance  or  inattention.1878 

There  was  a  collusion  be- 
tween A.  and  B.1879 


IB72  Walters  v.  Mace,  2  B.  &  A.  756 ;  1  Ch.  507.     The  allegation  concerned  a 
thing  present,  and  the  proof  a  thing  not  present. 
Ih"  Shepherd  v.  Bliss,  2  Stark.  Rep.  510. 
m*  McBean  v.  Williams,  5  Up.  Can.  Q.  B.  Rep.  0.  S.  689. 
1876  Serry  v  Dryden,  7  Mis.  324. 
1B7C  Sties  v.  Kemble,  27  Penn.  St.  Rep.  112. 
1"n  Street  v.  Bushnell,  24  Miss.  (3  Jones)  328. 
16,6  Brooks  v.  Blanshard,  1  Cr.  <fc  M.  779;  3  Tyrw.  844. 
18"  Johnson  v.  Tait,  6  Binn.  121. 


460  AMENDMENT. 

ALLEGATION.  PROOF. 

You  stole  a  dollar  from  A.  You    stole    a    dollar    from 

g  1880 

Venereal  disease.  Disgraceful  disease.1881 

§  372.  In  New  York,  under  the  Code  of  Procedure,  great 
latitude  of  amendment  is  allowed  ;  besides  the  right  to  amend 
once  of  course,  the  court  may  order  an  amendment  before  or 
upon  the  trial,  or  at  any  time  thereafter.1883  Prior  to  the  Code 
of  Procedure,  plaintiff  allowed  to  amend  inducement  after  issue, 
where  otherwise  the  right  of  action  would  have  been  barred  by 
the  statute  of  limitations.1884  Plaintiff  allowed  to  insert  addi- 
tional words,  but  not  a  new  cause  of  action.1885  Plaintiff  al- 
lowed to  insert  a  newly  discovered  cause  of  action.1886  Defendant 
permitted  to  add  an  additional  justification.1887  Amendments 
too,  seem  to  be  allowed  with  great  liberality  in  the  courts  in 


1680  Self  v.  Gardner,  15  Mis.  480. 

1681  Wagaman  v.  Byers,  17  Md.  183.  These  following  are  adjudged  material 
variances :  If  the  declaration  be  for  these  words,  "  Thou  procuredst  eight  or  ten 
of  thy  neighbors  to  perjure  themselves,"  and  the  jury  find  that  he  said,  Thou 
hast  caused  eight  or  ten,  <fec,  for  it  might  be  a  remote  cause,  scilicit,  without  pro- 
curement. Nar.  (the  declaration),  He  is  a  bankrupt.  Verdict,  He  will  be  a  bank- 
rupt within  two  days.  Nar.  He  is  a  thief.  Verdict,  He  stole  a  horse.  Nar.  Thou 
art  a  murderer.  Verdict,  He  is,  <fcc.  Nar.  /  know  him  to  be  a  thief.  Verdict, 
i"  think  him  to  be  a  thief.  And  at  p.  330 :  Nar.  Strong  thief.  Verdict,  Thief. 
Nar.  I  say,  &c.  Verdict,  I  affirm  or  I  doubt  not.  Nar.  The  plaintiff  will  do 
such  a  thing.  Verdict,  I  think  in  my  conscience  he  will  do  such  a  thing.  (1 
Trials  per  Pais,  329.) 

1883  Code  of  Procedure,  §§  169,  172,  173. 

law  Tobias  y.  Harland,  1  Wend.  93.  Leave  to  add  a  new  count  granted  {Con- 
roe  v.  Conroe,  47  Penn.  St.  R.  198),  but  denied  after  right  of  action  had  been 
barred  by  statute  of  limitations.     (Smith  v.  Smith,  45  Penn.  St.  Rep.  403.) 

1886  Weston  v.  Warden,  19  Wend.  648.  Plaintiff  permitted  on  the  trial  to  add 
a  new  cause  of  action.     (Miles  v.  Van  Horn,  17  Ind.  245.) 

1886  Williams  v.  Cooper,  1  Hill,  637.  Leave  to  add  a  justification  refused. 
( Waters  v.  Guthrie,  2  Bailey,  106). 

1687  Graham  v.  Woodhull,  1  Car.  497.  Defendant  on  trial  allowed  to  strike 
out  general  issue  and  plead  a  justification.     Anon.  1  Hill  (So.  Car.)  251. 


AMENDMENT.  461 

England  ;  thus  another  count  was  allowed  to  be  added  after  a 
rule  for  a  new  trial.1888  On  the  trial  the  words  charged  were 
allowed  to  be  amended,  the  substance  of  the  allegation  remain- 
ing the  same.1889  Plaintiff  allowed  to  amend  by  alleging  that 
the  words  were  spoken  of  him  in  his  character  of  auctioneer.1890 
Amendment  by  striking  out  innuendoes  refused.1891  Leave  to 
plead  a  justification,  after  verdict,  denied.1892 

1888  Wyatt  v.  Cocks,  10  Moore,  504.  And  see  Clarke  v.  Albert,  1  Gale,  358. 
The  statutes  as  to  amendments  to  be  liberally  construed.  (Smith  v.  Knowelden,  9 
Dowl.  40.) 

1889  Pater  v.  Baker,  3  C.  B.  831;  Foster  v.  Pointer,  9  Car.  &  P.  718;  Saunders 
v.  Bate,  38  Eng.  Law  &  Eq.  R.  409;  and  see  Lister  v.  McNeal,  12  Ind.  302. 

5890  Ramsdale  v.  Oreenacre,  1  F.  &  F.  61. 

J89a  Prudhomme  v.  Fraser,  1M.&  Rob.  435  ;  2  Adol.  <fe  El.  645. 

1892  Kirby  v.  Simpson,  3  Dowl.  Pra.  Cas.  791.  Leave  to  add  a  plea  of  the 
statute  of  limitations  refused.  (Allensworth  v.  Coleman,  5  Dana,  315.)  But 
granted.     (Brickett  v.  Davis,  21  Pick.  404.) 


CHAPTER    XVI. 


EVIDENCE    FOR    PLAINTIFF. 


Proof — of  publication — of  oral  publication — of  publication  in 
writing — of  defendants  liability.  Opinion  of  witnesses 
as  to  meaning.  Proof  of  inducement — of  plaintiffs  good 
reputation — of  malice — to  aggravate  damages.  Falsehood 
not  evidence  of  malice.  Other  publications  by  defendant — 
subsequent  publications — publication  after  commencement 
of  action.  Defendants  ill-will  to  'plaintiff.  Ill-will  to 
plaintiff  of  persons  other  than  the  defendant.  The  pub- 
lication itself  evidence  of  malice.  Attempted  justification 
an  aggravation.    .Evidence  in  reply. 

§  373.  If  the  publication  is  denied,  a  publication  must  be 
proved,  and  the  publication  proved  must  be  one  for  which  the 
defendant  is  responsible.  On  this  subject  much  has  already 
been  said  in  a  previous  chapter  [Ch.  YI.  3].  Whether 
there  has  been  any  publication  by  the  defendant  is  a  question 
of  fact  for  the  jury,  but  what  amounts  to  a  publication  for 
which  the  defendant  is  responsible  as  publisher  is  a  question  of 
law  for  the  court.  If  the  facts  were,  that  the  defendant  has 
posted  up  a  libel  in  a  public  place,  but  had  taken  it  down  again 
before  any  one  had  read  it,  there  would  in  point  of  law  be  no 
publication,  but  if  it  were  doubtful'  whether  before  it  was  taken 
down  some  one  had  not  read  it,  that  would  be  a  question  of 
fact  for  the  jury.1893 

§  374.  The  post-mark  on  a  letter  has  been  held  pri?nd  facie 

1883  Stark.  Ev.  tit.  Law  and  Fact. 


PROOF   OF   PUBLICATION.  463 

evidence  of  the  publication  of  the  letter.1894  The  production 
by  the  plaintiff  on  the  trial  of  a  letter  addressed  to  a  third  per- 
son held  evidence  of  the  publication  of  the  letter,  without  the 
oath  of  the  person  to  whom  the  letter  is  addressed.1895  Where 
the  letter  produced  was  addressed  to  a  person  in  Scotland,  with 
the  seal  broken  and  a  post-mark  of  a  place  in  England,  where 
it  was  proved  to  have  been  received  and  forwarded,  held  prima 
facie  evidence  that  the  letter  was  received  by  the  party  to 
whom  it  was  addressed,  and  of  its  publication.1896  Where  the 
defamatory  matter  was  contained  in  a  letter  addressed  by  the 
defendant  to  the  plaintiff,  and  there  was  no  evidence  of  its  pub- 
lication, other  than  the  production  of  the  letter  by  the  plaintiff, 
it  was  held  not  sufficient ; 1897  but  where  in  addition  it  was 
shown  that  the  letter  was  in  the  handwriting  of  the  defendant, 
and  that  he  had  read  it  aloud  in  the  presence  of  several  per- 
sons, it  was  held  that  the  letter  might  be  read  to  the  jury.1898 
The  defendant  had  been  chairman  of  a  public  meeting,  at 
which  the  libel  in  question  had  been  signed  by  him,  and  or- 
dered by  the  meeting  to  be  published  :  on  a  demurrer  to 
evidence,  an  affidavit  of  the  defendant,  and  one  of  A,  which 
the  defendant  in  his  own  affidavit  referred  to  as  correct,  stating 
that  the  address  was  ordered  to  be  published,  and  admitting 
and  justifying  the  publication,  together  with  a  copy  of  the 
address  annexed  to  the  affidavits,  and  referred  to  in  them,  were 
held  sufficient  evidence  of  publication.1899 

1,194  Shipley  v.  Todhunter,  1  C.  &  P.  680 ;  Hitchon  v.  Best,  1  B.  &  B.  299 ;  Rex 
v.  Watson,  1  Camp.  215;  Rex  v.  Johnson,  1  East,  65;  Fletcher  v.  Braddyll,  3  Stark. 
Cas.  64;  Rex  v.  Williams,  2  Camp.  505;  Rexv.  Qirdwood,  East  P.  C.  1116. 

1896  Callan  v.  Gaylord,  3  Watts,  321. 

1808  Warren  v.  Warren,  1  Cr.  M.  &  R.  250;  4  Tyrw.  850;  Stocken  v.  Collen,  1 
M.  <fe  W.  515. 

1897  Mcintosh  v.  Matherly,  9  B.  Monr.  119. 

m*McCombsy.  Tuttle,h  Blackf.  431.  See  note  102,  ante.  Evidence  of  the 
reading  the  libel  in  a  public  place,  and  of  comments  upon  it  in  defendant's  hear- 
ing, and  that  it  was  put  up  on  handbills  by  persons  unknown,  was  permitted  to 
be  proved.     {Rice  v.  Withers,  9  Wend.  138.) 

1899  Lewis  v.  Few,  5  Johns.  1. 


464  EVIDENCE   FOR   PLAINTIFF. 

§  375.  Where  a  witness  who  heard  the  words  spoken  imme- 
diately committed  them  to  writing,  he  may,  on  swearing  that 
he  wrote  down  the  exact  words,  read  what  he  wrote  in  evi- 
dence. But  if  the  words  were  not  written  down  until  some 
time  after  the  witness  heard  them,  although  he  may  not 
read  his  memorandum  in  evidence,  he  may  refer  to  it  to  refresh 
his  memory.1900  In  actions  of  slander,  witnesses  cannot  be 
allowed  to  state  the  impression  the  words  used  made  upon  their 
minds,  but  they  must  state  positively,  or  as  near  as  memory  will 
allow,  the  exact  words.1901 

§  376.  In  an  action  of  libel  against  the  proprietor  of  a 
newspaper,  a  copy  of  the  paper  bought  at  the  office,  if  alleging 
on  its  face  that  it  was  the  property  of  the  defendant,  is  suffi- 
ciently connected  with  the  defendant  by  proof,  and  a  paragraph 
in  it  is  relevant  to  read  to  the  jury  to  show  the  circulation  of 
the  paper.1902  On  a  declaration  in  slander,  consisting  of  a  sin- 
gle count,  in  which  the  slanderous  words  were  alleged  to  have 
been  uttered  by  the  defendant  "on  the  1st  day  of  November, 
1856,  and  on  divers  other  days  and  times  before  the  purchase 
of  the  plaintiff's  writ,"  it  was  held,  that  the  plaintiff  might,  in 
support  of  his  action,  prove  a  single  uttering  of  the  slander  by 
the  defendant  on  any  day  prior  to  the  date  of  the  writ.1903  A 
declaration  alleged  that  the  defendants  published,  or  caused  to 
be  published,  in  a  certain  pamphlet,  a  libel  concerning  the 
plaintiff.  From  the  evidence,  it  appeared  that  the  defendants 
were  instrumental  in  procuring  the  vote  of  a  medical  society 
expelling  the  plaintiff  therefrom  for   gross  immorality.     The 

1900  Sandwell  v.  Sandwell,  Holt  R.  295  ;  and  see  Huff  v.  Bennett,  6  N.  Y.  337. 

miTeague  v.  Williams,  7  Ala.  844;  Alley  v.  Neely,  5  Blackf.  200;  contra, 
Hawks  v.  Patton,  18  Geo.  52.  Where,  in  an  action  for  slander,  it  is  important  to 
show  that  the  charge  proved  by  a  witness  for  the  plaintiff  had  reference  to  a 
trial,  it  is  not  indispensable  for  the  witness  to  give  the  exact  words  of  the  de- 
fendant showing  such  reference ;  but,  if  this  is  desired,  they  should  be  elicited 
on  cross-examination.     (Douge  v.  Pearce,  13  Ala.  127.) 

1902  Fay  v.  Bennett,  4  Duer,  247. 

1903  Rice  v.  Cottrell,  5  Rhode  Island,  340;  and  as  to  proving  time  of  publication, 
see  Richardson  v.  Roberts,  23  Geo.  215;    Wright  v.  Britton,  1  Morris,  286. 


PROOF  OF  PUBLICATION.  465 

vote  was  published  among  the  transactions  of  the  society,  by 
the  regular  committee  of  publication,  of  which  the  defendants 
were  not  members.  Held,  that  the  allegation  in  the  declara- 
tion was  not  supported.1904  That  one  had  heard  of  a  slander- 
ous report  with  regard  to  the  plaintiff,  is  evidence  to  prove  the 
circulation  of  the  report,  but  not  to  prove  that  the  defendant 
circulated  the  report.1905 

Where  a  declaration  for  publishing  a  libel  does  not  purport 
to  set  it  forth  in  haec  verba,  and  a  libel  corresponding  with  the 
declaration  is  produced  on  the  trial,  if  the  jury  believe  that  the 
defendant  published  any  part  of  the  libellous  matter,  they  must 
find  for  the  plaintiff.1906  It  is  calculated  to  mislead  the  jury  to 
refer  it  to  them  to  determine  whether  the  defendant  "in 
substance  "  spoke  or  published  the  words  charged,  without  ex- 
plaining the  meaning  that  the  law  would  attach  to  that  expres- 
sion in  connection  with  the  proof  of  the  slander  charged.1907 

§  377.  The  words  of  a  defamatory  writing  cannot  be  proved 
by  parol,  until  it  has  been  shown  that  the  writing  itself  cannot 
be  produced.1908  But  if  after  the  publication  the  defendant  ob- 
tains possession  of  the  writing  and  refuses  to  produce  it,  in  that 
case  secondary  evidence  of  its  contents  may  be  given.1909  Where, 
to  prove  the  defendant  the  author  of  a  libel  which  the  defend- 
ant had  notice  to  produce,  A.  was  called,  who  swore  he  received 
the  manuscript  of  the  libel  from  the  defendant  and  returned  it 
to  him.  Bat  on  cross-examination  the  witness  stated  that  he 
had  not  delivered  the  manuscript  to  the  defendant  himself,  but 
had  delivered  it  to  his  [the  witness']  own  servant  to  deliver  to 
the  defendant.     A.'s  servant  was  called,  who  testified  that  he 

1004  Barrows  v.  Carpenter,  11  Cush.  456. 

1906  Schwartz  v.  Thomas,  2  Wash.  167. 
1808  Metcalf  v.  Williams,  3  Litt.  387. 

1907  Attebury  v.  Powell,  29  Mis.  (8  Jones)  429. 

1908  Simpson  v.  Wiley,  4  Porter,  215  ;  Aspinwall  v.  Whitmore,  1  Root,  408;  and 
see  McGrath  v.  Cox,  3  Up.  Can.  Q.  B.  Rep.  332. 

mv  Winter  v.  Donovan,  8  Gill,  370;  Le  Merchants  case,  2  T.  R.  201;  Layer's 
case,  6  State  Tr.  229. 
30 


466  EVIDENCE  FOR  PLAIXTIFF. 

delivered  the  manuscript  to  the  defendant's  servant ;  held,  not 
sufficient  to  enable  the  prosecutor  to  give  parol  evidence  of  the 
existence  of  the  paper,  nor  for  considering  the  defendant  as  the 
author  of  the  libel.1910  There  are  instances  of  the  courts 
having  refused  to  compel  the  production  of  the  writing,  and  at 
the  same  time  have  excluded  secondary  evidence  of  its  con- 
tents ;  as,  where  the  communication  was  addressed  to  the  gov- 
ernor of  a  State  respecting  a  State  officer,  the  court  held  that 
the  governor  to  whom  it  was  addressed  might  exercise  his  own 
discretion  as  to  its  production,  and  excluded  parol  evidence  of 
its  contents.1911 

§  378.  Where  the  defamatory  writing  has  been  lost,  second- 
ary evidence  of  its  contents  may  be  given.1912  Where  the  libel 
[a  song]  from   which  the  publication  took  place  was  lost,  a 


1910  Rex  v.  Pearce,  Peake's  Cases,  75. 

1911  Gray  v.  Pcntland,  2  S.  &  R.  23 ;  4  S.  &  R.  420 ;  and  see  Wyatt  v.  Gore, 
Holt's  Cases,  299  ;  Oliver  v.  Bentick,  3  Taunt.  456.  In  an  action  for  libel,  pending 
in  the  Circuit  Court  of  the  District  of  Columbia,  the  Hon.  Edwin  M.  Stanton, 
Secretary  of  War,  was  summoned  as  a  witness  to  produce  an  original  letter  ad- 
dressed to  the  former  Assistant  Secretary  of  War,  Dana,  which  letter  contains 
the  matter  alleged  to  be  libellous.  Mr.  Stanton  put  in  an  affidavit  respectfully 
submitting  his  objections  to  the  production  of  the  paper  in  question,  and  asking 
to  be  discharged  from  further  attendance.  The  affidavit  bore  the  following  in- 
dorsement: "Sir:  Letters  on  file  with  the  Heads  of  Departments  are  privileged 
communications.  Unless  their  publication  has  been  authorized,  no  copies  should 
be  taken  at  private  request,  and  the  production  of  the  original  cannot  be  com- 
pelled in  a  suit  between  individuals.  It  has  been  ruled  that  such  communications 
cannot  be  made  the  foundation  of  an  action  for  libel.  Then  I  think  the  head  of  a 
department  is  bound  not  to  produce  a  paper  on  file  in  his  office.  Such  a  letter  as 
you  describe  is  a  privileged  communication.  (Signed.)  J.  Speed,  Attorney- 
General."  And  in  an  action  for  libel,  it  was  held  that  a  member  of  Parliament 
could  not  be  examined  as  to  what  was  said  by  the  plaintiff  in  the  course  of  a 
debate  in  Parliament.  (Plunkett  v.  Cobbett,  5  Esp.  136.)  The  plaintiff  having 
failed  in  his  application -to  the  Senate  for  the  removal  of  the  injunction  of  secrecy, 
the  testimony  of  a  Senator  was  admitted  to  prove  that  plaintiff's  nomination  had 
been  rejected  by  the  Senate.  (Law  v.  Scott,  5  Har.  &  J.  438.)  It  has  been  held 
to  be  optional  on  the  part  of  counsel  whether  he  will  disclose  what  passed  in 
court  on  his  making  a  motion.    (Curry  v.  Walter,  1  Esp.  456.) 

1912  Gates  v.  Boivker,  18  Verm.  (3  Washb.)  23;  Weir  v.  Hoss,  6  Ala.  881. 


PROOF  OF  PUBLICATION.  467 

printer  was  allowed  to  produce  a  similar  one  printed  at  the 
same  time  and  which  he  proved  corresponded  with  the  one 
lost.1913  "Where,  to  sustain  an  action  of  libel,  the  proof  sought 
to  be  made  was,  that  the  publication  was  by  an  affidavit,  made 
by  the  defendant  before  a  magistrate,  imputing  to  the  plaintiff 
the  offence  of  hog  stealing,  and  the  only  evidence  of  the  exist- 
ence of  the  affidavit  was  an  imperfect  memorandum  of  it,  in 
the  handwriting  of  the  magistrate,  who  was  alive  and  out  of 
the  State,  and  there  was  no  sufficient  proof  of  its  being,  in 
whole  or  in  part,  a  copy ;  it  was  held,  that  the  evidence  was 
not  sufficient  to  sustain  the  action.1914 

§  379.  In  an  action  against  the  proprietor  of  a  newspaper 
for  a  libel  contained  in  it,  proof  that  the  paper  came  from  the 
defendant's  office,  and  was  one  copy  of  an  edition  of  the  same 
date,  and  alleging  on  its  face  that  he  is  the  proprietor,  is  proof 
of  a  publication  by  him  ; 1915  and  so  in  such  an  action  testimony 
by  a  subscriber  for  the  paper,  upon  being  shown  the  number  of 
the  paper  containing  the  article  in  question,  that  it  was  in  all 
respects  similar  to  the  paper  left  at  his  office,  and  that  he  had 
read  the  article  contained  in  the  paper  produced  in  the  one  left 
at  his  office,  is  sufficient  proof  of  publication,  without  producing 
the  paper  left  at  his  office.1916  And  where  a  witness  swore  that 
he  was  a  printer,  and  had  been  in  the  office  of  the  defendant 
when  a  certain  paper  was  printed,  and  he  saw  it  printed  there, 
and  the  paper  produced  by  the  plaintiff  was,  he  believed, 
printed  with  the  types  used  in  the  defendant's  office ;  held,  that 
this  was  prima  facie  evidence  of  the  publication  by  the  defend- 
ant.1917 The  witness  in  this  case  might  have  refused  to  testify 
on  the  ground  that  he  inculpated  himself,1918  but  as  he  did  not 

1913  Johnson  v.  Hudson,  1  Ad.  &  Ell.  233,  n. 

19,4  Sanders  v.  Rollinson,  2  Strobh.  447. 

1916  The  State  v.  Jeandell,  5  Hairing.  4*75;  Fry  v.  Bennett,  4  Duer,  247. 

1916  Huffy.  Bennett,  4  Sandf.  120;  and  see  Commonwealth  v.  Blanding,  3  Pick. 
304. 

1917  Southwick  v.  Stevens,  10  Johns.  442;  McCorhle  v.  Burns,  5  Binnej-,  340. 

1918  Moloney  v.  Bartley,  3  Camp.  210. 


468  EVIDENCE   FOR  PLAINTIFF. 

claim  his  privilege  his  testimony  was  properly  received ;  and  so 
it  was  held  in  the  case  of  a  witness  who  had  written  the  de- 
famatory matter  at  the  request  of  the  defendant.1919 

§  380.  Proof  that  the  defendant  gave  a  bond  to  the  stamp- 
office  for  the  duties  on  the  advertisements  in  a  newspaper  under 
the  statute  29  George  III.,  ch.  50,  and  that  he  had  occasionally 
applied  at  the  stamp-office  respecting  the  duties,  was  held  to 
be  sufficient  evidence  of  his  being  the  publisher  of  such  news- 
paper.1920 And  the  production  of  a  certified  copy  of  the  affida- 
vit required  by  the  statute  38  George  III.,  ch.  78,  with  a  news- 
paper containing  the  libel,  corresponding  with  the  paper 
described  in  the  affidavit ;  held,  to  be  sufficient  evidence  of 
publication  by  the  defendant.1921  Where,  in  an  action  for  libel 
in  a  newspaper,  the  one  put  in  had  the  place  of  publication  "  at 
the  corner  of  Charles  street  and  Hadfield  street,  in  the  parish 
of  M.,"  the  certificate  of  the  stamp-office  declaration  was  at 
" No.  23,  Charles  street,"  in  the  parish,  &c. ;  held,  sufficiently 
to  identify  the  newspaper  as  published  by  the  declarant,  within 
the  6th  and  7th  William  IV.,  ch.  76.1922 

§  381.  The  publication  of  a  libel  in  a  newspaper  may  be 
proved  by  producing  the  copy  of  the  newspaper  filed  in  the 
office  of  the  commissioner  of  stamps,1923  or  by  producing  a  copy 
filed  in  the  office  of  publication  of  such  newspaper.1924  On  the 
trial  of  an  action  for  a  libel  in  a  newspaper,  a  witness  stated 
that  he  was  president  of  a  literary  institution  having  eighty 
members ;  that  about  the  date  of  the  paper  proved,  one  was 

1919  Schenck  v.  Schenck,  1  Spencer,  208. 

1920  Rex  v.  Topham,  4  T.  R.  126.  Distributing  newspapers  containing  defama- 
tory matter  and  receiving  pay  for  them  through  an  agent,  is  sufficient  evidence 
of  publication  by  defendant.     The  State  v.  Davis,  3  Yeates,  128. 

1921  Mayne  v.  Fletcher,  9  B.  &  Cr.  382 ;  Rex  v.  Hunt,  9  B.  &  Cr.  382,  n. ;  Rex 
v.  Hart,  10  East,  94. 

1922  Baker  v.  Wilkinson,  1  Carr.  &  M.  399  ;  Rex  v.  Donnison,  4  B.  <fc  Ad.  698. 

1923  Cook  v.  Ward,  6  Bing.  409. 

1924  Rex  v.  Pearce,  Peake's  Cas.  75. 


DEFENDANT'S  LIABILITY.  469 

brought  (he  could  not  say  by  whom)  to  the  reading-room  of  the 
institution,  and  left  there  gratuitously ;  that,  a  fortnight  after, 
it  was  taken  away  without  his  authority,  and  never  returned ; 
that  he  had  searched  for  it  and  could  not  find  it,  and  believed  it 
to  be  lost  or  destroyed  ;  that  the  title  of  it  was  the  same  as  that 
proved,  and,  as  far  as  he  could  judge  from  a  glance  at  it,  it  con- 
tained the  libel  in  question,  and  he  believed  it  was  a  copy  of 
that  paper.  He  was  not  cross-examined.  Held,  first,  that 
secondary  evidence  of  the  contents  of  the  copy  was  properly 
admitted;  secondly,  that  there  was  evidence  for  the  jury  that 
the  paper  so  sent  to  the  institution  was  a  copy  of  that  which 
contained  the  libel ;  thirdly,  that,  though  sent  by  a  person  un- 
known, it  was  evidence  against  the  defendant,  not  to  show 
malice,  but  to  affect  the  damages,  by  showing  the  extent  of 
circulation.1925  But  where  a  defendant  alleged,  in  mitigation, 
that  a  libellous  book  was  published  against  him  by  plaintiff, 
and  in  support  of  such  allegation  a  bookseller  produced,  from 
his  own  possession,  a  printed  book,  stating  his  belief  that  it  is 
one  of  a  number  of  copies  published  at  his  shop  ;  held,  that  this 
was  not  evidence  for  the  jury  that  another  book  with  the  same 
contents  was  actually  published.1926 

§  382.  Where  a  person  has  admitted  that  he  was  the  author 
of  a  libel  in  a  certain  newspaper,  any  other  newspaper  of  the 
same  impression  may  be  read  to  the  jury,  and  is  not  secondary 
evidence.1927  A  newspaper  may  be  read  in  evidence  although 
not  stamped.1928  To  prove  the  publication  of  a  libellous  pam- 
phlet, a  witness  testified  that  she  received  from  the  defendant  a 
copy  of  a  pamphlet,  of  which  she  read  some  portions,  and  lent 
it  to  several  persons  in  succession,  who  returned  it  to  her,  and 
although  there  was  no  mark  by  which  she  could  identify  it,  she 

1925  Gathercole  v.  Miall,  15  M.  &  W.  319;  15  Law  Jour.  Rep.  179,  Ex.;  10  Ju- 
rist, 337 ;  7  Law  Times,  89. 

1026  Watts  v.  Fraser,  7  Ad.  &  E.  223;  1  Mo.  &  Rob.  451 ;  Moore  v.  Oastler,  1 
Mo.  <fe  Rob.  451. 

1927  McLaughlin  v.  Russell,  17  Ohio,  475;  Woodburn  v.  Miller,  Cheves,  194. 

me  Rex  v.  Pearce,  Peake's  Cas.  75;  1  Esp.  456. 


470  EVIDENCE   FOR  PLAINTIFF. 

believed  the  copy  produced  to  be  the  same,  but  could  not  swear 
that  it  was ;  held,  that  this  was  evidence  of  publication  proper 
to  be  left  to  the  jury.1929  Where  a  number  of  placards  is 
printed,  and  a  party  adopts  and  uses  some  of  them,  all  the  rest 
are  duplicate  originals,  and  one  of  them  may  be  read  against 
such  party,  without  notice  to  produce.1930  But  placards  in  the 
windows  of  third  persons,  setting  forth  the  forthcoming  contents 
of  the  newspaper  in  which  the  libel  was  contained ;  held,  inad- 
missible against  the  author,  unless  he  were  connected  with  the 
publication  of  them.1931  If  the  manuscript  of  a  libel  be  proved 
to  be  in  the  handwriting  of  the  defendant,  and  it  be  also  proved 
to  have  been  printed  and  published,  this  is  evidence  to  go  to 
the  jury  that  it  was  published  by  the  defendant,  although  there 
be  no  evidence  given  to  show  that  the  printing  and  publication 
were  by  his  direction.1932  And  as  handwritings  may  be  com- 
pared, in  an  action  for  libel,  if  the  testimony  is  corroborated 
from  other  sources,1923  papers  in  the  handwriting  of  the  de- 
fendant, found  in  the  house  of  the  editor  of  the  newspaper  in 
which  the  libel  was  published,  were  held  admissible  to  prove 
the  publication  by  the  defendant.1934 

§  383.  The  defendant's  liability  as  publisher  may  be  proved 
by  showing :  a  copy  of  the  alleged  libel  in  the  defendant's 
handwriting,1935  addressed  to  the  editor  of  a  newspaper ; 1936  or 

1929  Fryer  v.  Gathercole,  18  Law  Jour.  Rep.  387,  Ex.;  13  Jurist,  542;  13  Law 
Times,  285. 

1930  Rex  v.  Watson,  2  Stark.  Rep.  190. 

1931  Raikes  v.  Richards,  2  Car.  &  P.  562. 

1932  Reg.  v.  Lovett,  9  Car.  &  P.  462. 

1933  Cullan  v.  Gaylord,  3  Watts,  321 ;  Waddington  v.  Cousins,  7  Car.  &  P.  595; 
see  Rex  v.  Cator,  4  Esp.  lit;   Case  of  the  Seven  Bishops,  4  State  Tr.  338. 

1934  Tarpley  v.  Blabey,  2  Bing.  N.  S.  437 ;  2  Sc.  642 ;  7  Car.  &  P.  395 ;  May  v. 
Brown,  3  B.  <fe  Cr.  113;  Finnerty  v.  Tipper,  2  Camp.  72;  Wakley  v.  Johnson,  1 
Ry.  &  M.  422.  In  an  action  for  services  in  preparing  reports  for  a  newspaper, 
the  authorship  being  in  question,  it  is  not  competent  to  ask  the  opinion  of  a  wit- 
ness (founded  merely  on  his  having  read  the  articles  and  professing  a  knowledge 
of  the  plaintiff's  style  of  writing)  as  to  whether  the  reports  were  written  by  the 
plaintiff.     (Zee  v.  Bennett,  How.  Ct.  of  App.  Cas.  202.) 

1935  Me  Combs  v.  Tuttle,  5  Blackf.  431. 


EVIDENCE  OF  MEANING.  471 

by  showing  that  defendant  paid  the  printer  or  publisher  of  a 
newspaper  for  the  insertion  of  the  defamatory  matter  in  the 
newspaper  of  such  printer  or  publisher  ; 1937  or  by  showing  the 
defendant's  admission  of  authorship.1988  Where  the  defendant 
admitted  that  he  was  the  author  of  the  alleged  libel,  errors  ex- 
cepted, held  that  the  burden  was  on  him  to  show  that  the  errors 
were  material.1939  The  fact  that  the  defendant  made  the  publi- 
cation to  the  witness  under  an  injunction  of  secresy,  is  no  ob- 
jection to  the  proof  of  the  publication  by  such  witness.1940 

§  384.  The  court  and  jury,  and  not  the  witnesses,  are  to 
construe  the  words.1941  And  the  opinions  of  witnesses  as  to 
the  meaning  of  the  language  published  is  not  admissible,1942 
and,  therefore,  a  witness  cannot  be  asked  how  he  understood 
the  words  published,1943  nor  be  permitted  to  state  what  meaning 
he  understood  the  defendant  to  convey  by  the  words.1944  The 
words  being  unambiguous,  it  is  not  competent  for  a  witness  to 
say  that  he  understood  the  publisher  to  mean  differently  from 
the   common  import  of  the  words.1945     The  plaintiff  and  de- 

1936  Bond  v.  Douglass,  7  C.  &  P.  626. 

1937  Schenck  v.  Schenck,  1  Spencer,  208. 

5938  Commonwealth  v.  Guild,  Thaeher's  Crim.  Cas.  329 ;  Bex  v.  Burdett,  4  B.  & 
A.  717;   The  Seven  Bishops'  Case,  4  State  Trials,  304. 

1939  Bex  v.  Hall,  Str.  416. 

1940  Mc  Govern  v.  Manifee,  7  Monr.  314. 

1941  Olmsted  v.  Miller,  1  Wend.  510.  la  Weed  v.  Bibbins,  32  Barb.  315,  held 
that  evidence  of  what  was  generally  understood  by  "the  Cunningham  affair" 
was  improperly  admitted.  And  see  Justice  v.  Kirlin,  17  Ind.  588  ;  Wachter  v. 
Quenzer,  29  N.  Y.  552;  and  ante,  ch.  vii.  and  §§  281,  286. 

1942  Smart  v.  Blanchard,  42  N.  Hamp.  137.  Unless  the  words  are  ambiguous, 
and  their  application  doubtful,  in  which  case  the  testimony  of  hearers  as  to  how 
they  understood  the  words  is  admissible.  {Id. ;  and  see  Barton  v.  Holmes,  16 
Iowa,  252;  Smith  v.  Miles,  15  Verm.  245.)  In  Leonard  v.  Allen,  11  Cush.  241, 
an  action  for  slander,  not  by  direct  words,  but  by  expressions,  gestures,  and  in- 
tonations of  voice,  it  was  held  competent  for  witnesses  who  heard  the  expressions 
to  state  what  they  understood  the  defendant  to  mean  by  them,  and  to  whom  he 
intended  to  apply  them. 

19,3  Wright  v.  Paige,  36  Barb.  438. 

1944  Snell  v.  Snow,  13  Mete.  278. 

1946  Potto  v.  Pace,  7  Jones'  Law  N.  C.  558. 


472  EVIDENCE  FOR  PLAINTIFF. 

fendant  being  present  at  a  tavern  where  there  had  been  a  raffle, 
defendant  said,  "  I  am  surprised  at  P.  allowing  a  blackleg  in 
this  room."  On  the  trial,  a  witness  being  asked  what  he  un- 
derstood by  "  blackleg,"  answered,  "  A  person  in  the  habit  of 
cheating  at  cards."  Held,  by  Pollock,  C.  B.,  and  AVatson,  B., 
that  the  evidence  was  proper  ;  and  by  Martin  and  Bramwell, 
BB.,  that  it  was  not  proper.1946  Nor  can  a  witness  be  asked  to 
whom  he  understood  the  defamatory  matter  to  apply.1947 

§  385.  Matter  of  inducement,  if  put  in  issue,  must  be 
proved.1948  If  not  put  in  issue,  no  proof  of  it  is  necessary,  and 
no  evidence  respecting  it  is  admissible.  Matter  of  inducement 
is  not  put  in  issue  by  a  plea  of  not  guilty.1949  Matter  of  in- 
ducement may  be  proved  by  parol.1950  When  the  words  are 
actionable  only  by  reason  of  their  relation  to  extrinsic  facts, 
such  facts  must  be  proved  ;  as  where  the  words  were  charged 
as  spoken  of  a  constable,  imputing  misconduct  in  the  execution 
of  a  bench  warrant,  the  words  not  being  actionable  in  them- 
selves, it  was  held  that  the  warrant  must  be  proven.1951  In  an 
action  against  the  editor  of  a  newspaper  for  a  libellous  publi- 
cation, it  is  admissible  for  the  plaintiff  to  show  articles  in  sub- 
sequent numbers  of  the  same  paper,  for  the  purpose  of  proving 
that  the  plaintiff  was  the  person  intended  to  be  defamed.1952 

§  386.  Pursuant  to  a  rule  already  referred  to  [§  315],  the 
defamatory  matter,  so  far  as  it  goes,  is  evidence  of  the  intro- 

1946  Bamettv.  Alien,  3  Hurl.  &  Nor.  376;  1  Fost.  &  Fin.  235.  Jury  told  to 
consider  if  words  had  conveyed  meaning  of  a  person  'who  had  gambled  so  as  to 
be  liable  to  a  criminal  prosecution.     {Id.) 

1947  Rangier  v.  Himmel,  37  Penn.  St.  R.  130.  Held  that  a  witness  may  say 
who  is  meant  by  the  libel.  (Smalley  v.  Stark,  9  Ind.  386.)  See  ante,  §  97,  notes 
99,  132,  150. 

194B  "  It  is  still  necessary  under  the  plea  of  not  guilty  to  prove  the  colloqui- 
um."    Cooke  on  Defam.  145. 

1949  Gwynne  v.  Sharpe,  1  Carr.  &  M.  532. 
1960  Southwick  v.  Stevens,  10  Johns.  443. 

1951  Kinney  v.  Nash,  3  N.  Y.  177. 

1952  White  v.  Sayward,  33  Maine,  322. 


PROOF  OF  INDUCEMENT.  473 

ductory  averments.1953  Thus  for  words  spoken  respecting  the 
plaintiff's  trade;  if  the  words  assume  that,  at  the  time  they 
were  spoken,  the  plaintiff  was  engaged  in  such  trade,  there  is 
no  need  of  proving  that  fact.1954  "Where  it  was  to  be  plainly 
inferred,  from  the  general  tenor  of  the  libel,  that  it  was  the 
object  of  the  writer  to  represent  the  plaintiff  as  holding  a  sit- 
uation of  trust  and  confidence,  and  that  he  had  abused  it, 
held  that  it  was  sufficient  to  sustain  the  allegation  in  the  de- 
claration of  plaintiff's  holding  such  situation.1955  A  declara- 
tion in  libel  stated  as  inducement  that  the  plaintiff  was  a  sur- 
geon and  member  of  the  College  of  Surgeons,  which  said  col- 
lege had  the  power  of  expelling  persons  guilty  of  unprofes- 
sional conduct,  and  of  unprofessionally  advertising  themselves 
and  their  cures.  The  libel  was  alleged  to  be  published  of  and 
concerning  the  plaintiff  as  such  surgeon,  and  of  and  concern- 

1963  Rutherford  v.  Evans,  6  Bing.  451.  In  this  case  the  plaintiff  declared  in 
respect  of  a  libel  upon  him  as  "  Surveyor  of  tbe  New  England  Company  ; "  held 
sufficient  for  him  to  prove  employment  by  a  company  generally  known  by  that 
name. 

1864  Hesler  v.  Degant,  3  Ind.  501 ;  Rodebaugh  v.  Eollingsworlh,  6  Ind.  339 ; 
Berryman  v.  Wise,  4  T.  R.  366.  Where,  in  an  action  for  a  libel  against  the 
plaintiff,  a  medical  practitioner,  of  and  ci  ncerning  him  in  his  said  practice,  no 
evidence  was  offered  of  the  plaintiff  being  of  any  regular  degree,  the  libel  stating 
him  to  be  a  quack,  and  that  certain  persons  had  the  misfortune  to  come  within 
his  doctrinal  prescriptions ;  held,  that  if  the  jury  considered  that  the  libel  spoke 
of  him  as  a  medical  practitioner,  the  case  was  not  withdrawn  from  their  consid- 
eration, although  they  might  not  give  the  same  damages  as  to  a  person  proved 
to  be  a  regular  practitioner.  {Long  v.  Chubb,  5  C.  <fc  P.  55.)  Where  the  declar- 
ation alleged  that  there  were  such  states  as  C.  and  B.,  that  the  plaintiff  and  one 
H.  had  been  appointed  minister  plenipotentiary  and  consul-general  respectively 
from  those  states  to  this  country,  the  libel  on  the  face  of  it  admitted  that  there 
were  such  states ;  and  it  being  proved  at  the  trial  that  the  plaintiff  had  been  ap- 
pointed such  officer  for  the  one  state,  and  H.  for  the  other,  held  that  the  allega- 
tions were  sufficiently  made  out.     (Yrissari  v.  Clements,  3  Bing.  432.) 

""  Bagnall  v.  Underwood,  11  Price,  621.  In  an  action  for  a  libel  the  defend- 
ant pleaded  justification,  and  in  his  plea  introducid  certain  passages  from  a 
pamphlet  written  by  plaintiff,  upon  which  plea  issue  was  joined.  Held,  that  this 
was  not  so  far  an  adoption  of  the  whole  pamphlet  as  true,  as  to  enable  the  plain- 
tiff to  read  other  passages  from  it,  to  show  that  the  defendant  was  the  aggressor 
in  the  controversy  which  led  to  its  publication.  (Keantey  v.  Govgh,  5  Gill  & 
Johns.  457.) 


474  EVIDENCE  FOR  PLAINTIFF. 

ing  the  said  college  and  its  said  power.  One  of  the  libels  com- 
plained of  contained  a  statement  that  the  college  had  the 
power  of  expelling  its  members.  The  second  plea  was  that 
the  plaintiff  was  not  a  surgeon  and  member  of  the  College  of 
Surgeons  having  the  power  of  expelling  persons  guilty  of  un- 
professional conduct,  and  of  unprofessionally  advertising  them- 
selves and  their  cures.  Held,  that  the  traverse  put  in  issue  the 
power  of  the  college  to  expel,  and  that  the  statement  in  the 
libel  itself  was  not  sufficient  evidence  of  such  power.1956 

§  387.  It  is  a  vexed  question  whether  in  an  action  for  slan- 
der or  libel  the  plaintiff  may,  in  aggravation  of  the  damage  he 
has  sustained,  introduce  evidence  of  his  good  reputation  prior 
to  the  publication  complained  of;  on  this  point,  as  upon  all  the 
others  relating  to  the  proceedings  in  an  action,  we  can  do  no 
more  than  call  attention  to  the  decisions  upon  the  subject. 
Although  it  may  be  true  that  in  an  action  for  slander  or  libel 
the  reputation  of  the  plaintiff  is  in  issue,  it  is  nevertheless  true 
that,  as  a  general  rule,  the  reputation  of  the  plaintiff  is  as- 
sumed to  be  good  until  the  contrary  is  shown  [§§  313,  314]  ; 
and  that,  unless  some  blot  upon  the  plaintiff 's  reputation  is  set 
up  as  a  mitigating  circumstance,  or  his  reputation  is  otherwise 
assailed,  he  is  not  permitted  for  any  purpose  to  introduce  any 
evidence  on  the  subject ;  thus  it  has  been  held  that  evidence 
cannot  be  given  of  the  fairness  of  the  plaintiff's  character  [rep- 
utation], even  where  a  justification  is  pleaded,  unless  attacked 
by  the  defendant.1957     But  held,  also,  that  where  the  general 

1856  Wakley  v.  Heahy,  18  Law  Jour.  Rep.  426,  Ex. ;  13  Law  Times,  259. 

1957  Shiprnan  v.  Burrows,  1  Hall,  399  ;  Harcourt  v.  Harrison,  1  Hall,  474  ;  Corn- 
wall v.  Richardson,  1  Ry.  <fc  M.  305;  1  C.  &  Y.  106 ;  Severance  v.  Hilton,  4  Foster, 
147;  McGeeY.  Sodusky,  5  J.  J.  Marsh.  185 ;  Inman  v.  Foster,  8  Wend.  602  ;  Barney. 
Kenney,  5  Fost.  318 ;  PetrieY.  Rose,  5  Watts  &  Serg.  364 ;  Holley  v.  Burgess,  9  Ala. 
728 ;  Chubb  v.  Gsell,  34  Penn.  St.  R.  114  ;  Miles  v.  Van  Horn,  17  Ind.  245 ;  and  see 
Rhodes  v.  James,  7  Ala.  574;  Rector  v.  Smith,  11  Iowa,  302  ;  Tibbs  v.  Brown,  2 
Grant's  Cases  (Penn.)  39 ;  Fleetcraft  v.  Jenks,  3  Whart.  158  ;  McCabe  v.  Platter,  6 
Blackf.  405  ;  contra,  Scott  v.  Peebles,  2  Sm.  <fe  M.  546 ;  Byrketv.  Monohon,  7  Blackf. 
83.  It  is  not  competent  for  the  plaintiff  to  make  proof  of  bis  good  character,  in  re- 
ply to  evidence  of  the  truth  of  the  charge.  (Houghtaling  v.  Kilderhouse,  1  Corns. 
530 ;  affirming  2  Barb.  149  ;  Matthews  v.  Huntley,  9  N.  Hamp.  146  ;  Springstein  v. 


PLAINTIFFS  REPUTATION.  475 

issue  only  is  pleaded,  the  plaintiff  may  give  evidence  of  his 
good  character.1953  In  slander  for  the  charge  of  perjury,  where 
the  plaintiff  is  permitted  to  give  evidence  of  his  character  to 
protect  himself,  it  is  error  to  confine  him  to  evidence  of  his 
general  character  for  truth  and  veracity.1959  A  witness  called 
by  the  plaintiff  in  an  action  of  slander,  in  support  of  the  plain- 
tiff 's  general  character,  stated  that  some  persons  spoke  very  ill 
and  some  very  well  of  it.  Held,  that  the  plaintiff  might  ask 
the  witness  in  what  particulars  some  people  spoke  against 
him.1960 

§  388.  Where  the  language  is  actionable  and  the  publica- 
tion does  not  appear  to  be  on  any  occasion  which  renders  it 
privileged,  there  the  language  is  presumed  to  be  false  and  mali- 
cious, i.  <?.,  published  without  lawful  excuse.1961  But  where  the 
publication  is  prima  facie  privileged,  the  onus  of  proving 
malice  in  fact,  i.  e.,  that  the  defendant  was  actuated  by  mo- 
tives of  personal  spite  or  ill-will,  is  upon  the  plaintiff.     The 

Field,  Anthon,  185  ;  Her  v.  Cromer,  Wright,  441 ;  Stow  v.  Converse,  3  Conn.  325.) 
Where  the  charge  is  such  that  the  defendant's  evidence  in  justification,  though 
insufficient  to  prove  it,  has  a  tendency  to  affect  the  general  character  of 
plaintiff,  on  the  subject  of  the  charge,  he  may  reply  by  evidence  of  general  good 
character  in  that  particular.     (  Wright  v.  Schroeder,  2  Curtis,  C.  C.  548.) 

1958  Williams  v.  Greenwade,  3  Dana,  432  ;  King  v.  Waring,  5  Esp.  Cas.  14 ; 
Bennett  v.  Hyde,  6  Conn.  24 ;  Romayne  v.  Duanes,  3  Wash.  C.  C.  246  ;  Sample  v. 
Wynn,  Busbee  Law  (N.  C.)  319;  Howell  v.  Howell,  10  Ired.  82 ;  Burton  v.  March, 
6  Jones'  Law  N.  C.  409. 

1958  Steinman  v.  Mc  Williams,  6  Barr,  1*70. 

,9t0  Leonard  v.  Allen,  11  Cush.  241. 

1961  Fry  v.  Bennett,  5  Sandf.  54;  Fdes  v.  Antrobus,  1  Miss.  197;  McKee  v. 
Ingalh,  4  Scam.  30 ;  Parke  v.  Blackiston,  3  Harring.  313 ;  Kinney  v.  Hosea,  Id. 
397 ;  Farley  v.  Ranck,  3  Watts  &  Serg.  554 ;  Erwin  v.  Sumrow,  1  Hawks,  472 ; 
Dexter  v.  Spear,  4  Mason,  115;  Bodwell  v.  Osgood,  3  Pick.  379;  Weaver  v.  Hen- 
drick,  30  Miss.  (9  Jones)  502  ;  Roberts  v.  Camden,  9  East,  93 ;  Usher  v.  Severance, 
2  App.  9  ;  Yeates  v.  Reed,  4  Blackf.  463 ;  Gilmer  v.  Enbank,  13  111.  271 ;  Root  v. 
King,  7  Cow.  613  ;  affirmed,  4  Wend.  113;  Trabue  v.  Mayo,  3  Dana,  138;  Byrket 
v.  Monohon,  7  Blackf.  83;  Hudson  v.  Garner,  22  Miss.  (1  Jones)  423;  Curtis  v. 
Massey,  6  Gray,  261.  The  jury  cannot  infer  the  want  of  malice  from  the  fact 
that  the  words  were  spoken  only  once,  and  stated  as  a  common  report.  ( Mason 
v.  Mason,  4  N.  Hamp.  110.) 


476  EVIDENCE  FOR  PLAINTIFF. 

existence  or  non-existence  of  this  intent  is  a  question  for  the 
jury.1962  "  The  want  of  proof  on  the  part  of  the  defendant 
that  the  slander  was  true  is  not  enough  [to  prove  malice],  and 
the  plaintiff,  to  maintain  his  action,  must  show  that  the  charge 
was  false,  before  he  can  ask  the  jury  to  find  the  slander  to  be 
malicious." 1963 

§  389.  It  is  said  that  falsehood  may  be  evidence  of  mal- 
ice.1964 But  the  mere  falsity  of  a  publication  without  its  being 
shown  that  the  publisher  knew  it  to  be  false,  is  not  per  se  evi- 
dence of  malice.  Thus,  where  the  alleged  libel  was  a  com- 
plaint made  by  the  defendant  of  the  incompetency  of  the  plain- 
tiff, a  surveyor,  who  had  been  sent  to  him  for  employment,  and 
the  innuendo  charged  that  the  defendant  meant  that  the  plain- 
tiff was  not  a  competent  and  skilful  surveyor,  held,  that  evi- 
dence of  the  general  competency  and  abilities  of  the  plaintiff 
was  inadmissible  to  show  malice.1965  Making  a  statement  which 
is  untrue  to  the  knowledge   of  the  party  making  it,  is  evi- 


WiPattison  v.  Jones,  8  B.  &  C.  578 ;  3  M.  &  R.  101 ;  Bromage  v.  Brosser,  4  B. 
&  C.  247 ;  6  Dow.  &  R.  296 ;  Child  v.  Affleck,  9  B.  &  C.  403 ;  Kelly  v.  Parting- 
ton, 4B.  <fe  Ad.  700;  3  N.  &  M.  116;  Toogoodv.  Spyring,  4  Tyrw.  582;  1  C.  M. 
&  R.  573  ;  Kine  v.  Sewell,  3  M.  &  W.  297  ;  Wright  v.  Woodgate,  2  C.  M.  &  R. 
573;  Tyrw.  &  G.  12;  Liddle  v.  Hodges,  2  Bosw.  537;  Somerville  v.  Hawkins, 
10  C.  B.  583;  15  Jurist,  450.  The  question  of  malice  is  for  the  jury  to  deter- 
mine, upon  all  the  facts  and  conversations  in  connection  with  which  the  words 
were  spoken.  (MeKee  v.  higalls,  4  Scam.  30 ;  Erwin  v.  Sumrow,  1  Hawks,  472 ; 
Smith  v.  Youmans,  Riley,  88  ;  Robinson  v.  May,  2  Smith,  3 ;  Roberts  v.  Camden, 
9  East,  93;  Coleman  v.  Playsted,  36  Barb.  26.)  In  judging  of  the  malicious 
character  of  an  alleged  libel,  the  jury  may  take  into  consideration  the  whole 
publication ;  and  if  it  contains  statements  concerning  other  persons,  which  are 
malicious,  the  jury  may  infer  therefrom,  that  what  is  said  of  the  plaintiff  is  also 
malicious.  {Miller  v.  Butler,  6  Cush.  71,  and  see  Caddy  v.  Barlow,  1  M.  &  R. 
275.) 

1963  Fowles  v.  Bowen,  30  N.  Y.  26  ;  and  see  Edwards  v.  Chandler,  14  Mich.  471 ; 
Rogers  v.  Clifton,  3  B.  <fc  P.  587. 

1964  Fairman  v.  Ives,  5  B.  &  Aid.  645.  Where  part  of  a  defamatory  publica- 
tion is  shown  to  be  true,  the  falsehood  of  the  other  part  may  be  left  to  the  jury 
as  evidence  of  malice.     (Blaggv.  Siurt,  10  Q.  B.  897;  8  Law  Times,  135.) 

1968  Brine  v.  Bazalgette,  18  Law  Jour.  Rep.  348,  Ex. 


TO  AGGRAVATE  DAMAGES.  477 

dence  of  malice.1966  On  the  trial  of  an  action  for  slander,  the 
plaintiffs  witnesses  proved  that  the  slanderous  statements  were 
untrue  in  fact,  but  also  that  they  were  the  natural  and  reason- 
able inferences  from  what  took  place,  and  which  they  professed 
to  describe,  and  that  the  defendant  was  present  at  the  occur- 
rence which  the  slanderous  statements  referred  to.  The  judge 
ruled  that  the  occasion  was  privileged,  but  that  the  plaintiff 
must  have  a  verdict  unless  the  defendant  proved  that  the  state- 
ments were  made  without  malice.  Held,  a  right  direction  ;  the 
presence  of  the  defendant  being  some  evidence  that  the  state- 
ments were  made  with  a  knowledge  that  they  were  untrue.1967 
To  show  that  the  defendant  knew  of  the  falsity  of  a  charge  of 
theft  published  by  him  the  plaintiff  was  permitted  to  prove 
that  after  the  time  when  the  theft  was  alleged  to  have  been 
committed  by  plaintiff,  the  defendant  continued  upon  friendly 
terms  with  plaintiff.1968 

§  390.  The  plaintiff  may  prove  in  aggravation  of  the  dam- 
ages, his  rank  and  condition  in  society,1969  malice  [ill-will]  in 
defendant  [§  392, post],  that  defendant  knew  the  charge  to  be 
false,1970  other  publications  of  words  not  actionable™1  or  which 
are  actionable,1972  if,  as  is  said,  the  right  of  action   on   such 

1966 Fountain  v.  Boodle,  2  Gale  &  D.  455;  5  Q.  B.  5;  Harris  v.  Thompson,  13 
C.  P.  333  ;  SextonY.  Brock,  15  Ark.  345;  Farley  v.  Ranck,  3  Watts  &  Serg.  554. 

1967  Hartwell  v.  Vesey,  9  C.  B.,  N.  S.  882.  In  slander,  with  general  issue  only- 
pleaded,  the  plaintiff  cannot  in  the  first  instance,  give  evidence  tending  to  prove 
the  defendant's  knowledge  of  the  falsity  of  the  words  spoken,  (Hartrauft  v. 
Hesser,34:  Penn.  St.  R.  117.) 

196B  Burton  v.  March,  6  Jones  Law  (N.  C.)  409. 

1969  Tillotson  v.  Cheetham,  3  Johns.  56  ;  Hosley  v.  Brooks,  20  HI.  115  ;  Lamed 
v.  Buffington,Z  Mass.  546;  Bodwelly.  Swan,  3  Pick.  376;  Homey.  Perry,  15  Pick. 
506;  Smithy.  Lovelace,  1  Duvall  (Ky.),  215;  Justice  v.  Kerlin,  17  Ind.  588; 
contra,  see  Gandy  v.  Humphries,  35  Ala.  617. 

1970  Bullock  v.  Cloyes,  4  Verm.  304  ;  Stow  v.  Converse,  3  Conn.  325. 

1971  Allensworth  y .  Coleman,  5  Dana,  315.  Slanderous  words,  not  laid  in  the 
declaration,  cannot  be  proved  in  aggravation  of  damages.  ( Vincent  y.  Dixon,  5 
Ind.  (Porter)  270 ;  Schenck  v.  Schenck,  1  Spencer,  208 ;  Botelar  v.  Bell,  1  Md. 
173.) 

197a  Lee  v.  Huson,  Peake,  166  ;  Bond  v.  Douglass,  7  C.  <fc  P.  626 ;  but  see  Cook 
v.  Field,  3  Esp.  133. 


47S  EVIDENCE   FOR    PLAINTIFF. 

word  is  barred  by  the  statute  of  limitations.1973  Subsequent 
defamatory  remarks  upon  the  plaintiff1974  and  after  the  com- 
mencement of  the  action.1975  In  slander  of  a  physician  in  his 
profession,  the  currency  of  the  slanderous  report  in  the  place 
of  his  practice,  following  the  utterance  of  the  same  by  the  de- 
fendant, may  be  given  in  evidence,  as  well  as  the  effect  of  such 
report  upon  the  professional  gains  of  the  plaintiff,  in  aggrava- 
tion of  damages,  without  strict  proof  connecting  the  current 
report  with  the  slander  of  the  defendant ;  the  fact  of  such  con- 
nection being  for  the  jury,  and  not  for  the  court  to  pass  upon.1976 
A  libel  charged  M.  with  kidnapping  a  free  colored  man,  and 
referred  to  two  numbers  of  a  newspaper  which  showed  the 
transaction  in  full  /  Held,  an  aggravation  of  the  libel.1977    If 

1913Breckettv.  Davis,  21  Pick.  404  ;  Throgmorton  v.  Davis,  4  Black.  174.  But 
words  not  laid  in  the  declaration  cannot  be  proved  to  make  the  words  laid  action- 
able. {Jones  v.  Jones,  1  Jones  Law  (N.  C),  495.)  And  where  words  actionable  in 
themselves,  and  not  set  out  in  the  declaration  are  admitted  in  evidence  to  prove 
malice,  the  court  must  caution  the  jury  that  they  are  not  to  increase  the  damages 
on  account  of  such  words.  (Letton  v.  Young,  2  Met.  (Ky.)  558;  Barrett  v.  Dong , 
8  Ir.  Law  Rep.  331 ;  Scott  v.  McKinnish,  15  Ala.  662;  Bursonv.  Edwards,  1  Car- 
ter, (Ind.)  164.) 

1974  Chubb  v.  Westley,  6  C.  &  P.  436.  Where  the  words  complained  of  are  un- 
ambiguous, held,  that  proof  of  the  publication  subsequently  of  other  words  of  the 
same  import,  is  inadmissible.  (Pearce  v.  Ormsby,  1  M.  &  Rob.  455 ;  Symmons  v. 
Make,  Id.  447.) 

m6Barwell  v.  Adkins,  2  Sc.  N.  S.  11 ;  Heslerv.  Degant,  3  Ind.  501;  Williams 
v.  Harrison,  3  Miss.  411 ;  Hutch  v.  Potter,  2  Gilman,  75  ;  Kean  v.  M'Laughlin,  2 
S.  <fe  R.  469 :   contra,  McGlenery  v.  Keller,  3  Blackf.  488. 

In  an  action  for  a  libel  in  a  weekly  periodical  publication,  a  witness  was 
allowed  to  prove  a  purchase  of  a  copy  after  the  action  brought.  (Plunkett  v. 
Cobbett,  2  Selw.  N.  P.  1042;  2  Esp.  136.)  If  a  defendant,  after  action  brought, 
issues  a  new  publication,  mingling  the  matter  for  which  he  has  been  sued  with 
new  libellous  matter,  he  cannot  call  upon  the  court  to  analyze  the  publication, 
and  separate  what  refers  to  the  former  libel,  from  the  new  slanderous  matters  it 
may  contain  ;  but  the  whole  may  be  read  in  evidence.  (Schenck  v.  Schenck,  1 
Spencer,  208.)  As  to  proof  of  repetition  of  the  slander  not  being  admissible  to 
aggravate  the  damages,  see  Burson  v.  Edwards,  1  Carter,  (Ind.)  164  ;  Shortley  v. 
Miller,  1  Smith,  395  ;  Danter  v.  McEwen,  8  Blackf.  495 ;   Forbes  v.  Myers,  Id.  74. 

,97S  Rice  v.  Cottrell,  5  R.  I.  340.  In  Hotchkiss  v.  Lothrop,  1  Johns.  286  ;  Dole  v. 
Lyon,  10  Johns.  447,  doubted  if  defendant  being  indemnified  was  not  admissible 
in  aggravation.     Semble  not,  as  indemnity  void.     Ante,  note  1526. 

1977  Nash  v.  Benedict,  25  Wend.  645. 


PROOF  OF  MALICE.  479 

the  publication  was  in  a  newspaper,  the  plaintiff  may,  to"  ag- 
gravate the  damages,  prove  the  extent  of  the  circulation  of 
that  paper  at  the  time  of  the  publication  of  the  alleged  libel- 
lous matter,  and  to  prove  this,  may  give  a  copy  of  the  defend- 
ant's paper  in  evidence  containing  a  statement  of  the  amount 
of  circulation.1978 

§  391.  The  plaintiff,  to  aggravate  damages,  cannot  prove 
the  defendant's  wealth,1979  nor  that  it  was  currently  reported  that 
defendant  had  charged  the  plaintiff  with  the  crime  mentioned 
in  the  declaration,1980  nor  that  the  plaintiff  had  suffered  distress 
of  mind.1981 

§  392.  The  plaintiff  may  prove  express  malice — i.  e.,  ill- 
will  or  hostility  on  the  part  of  the  defendant  towards  the  plain- 
tiff, either  to  aggravate  the  damages 1982  or  to  defeat  a  defence 
of  privileged  publication.1983     To   establish   such   malice,   the 

"™Fry  v.  Bennett,  28  N.  Y.  330. 

1979  Myers  v.  Malcolm,  6  Hill,  292 ;  Ware  v.  Curtledge,  24  Ala.  622  ;  Palmer  v. 
Haskins,  28  Barb.  90;  Morris  v.  Barker,  4  Harring.  520;  but  Bee  Fry  v.  Bennett, 
4  Duer,  247 ;  Bennett  v.  Hyde,  6  Conn.  24 ;  Case  v.  Marks,  20  Conn.  248  ;  Adcock 
v.  Marsh,  8  Ired.  360  ;  Karney  v.  Paisley,  13  Iowa,  (5  With.)  89  ;  Humphries  v. 
Parker,  52  Maine,  502;  Hosley  v.  Brooks,  20  111.  115;  Lewis  v.  Chapman,  19 
Barb.  252. 

1980  Leonard  v.  Allen,  11  Cush.  (Mass.)  241. 

1981  Terwilliger  v.  Wands,  17  N.  Y.  54  ;  Wilson  v.  Goit,  Id.  442 ;  contra,  Swift  v. 
Dickerman,  31  Conn.  285. 

mi  pry  y  Bennett,  28  N.  Y.  330;  True  v.  Plumley,  36  Maine  (1  Heath),  466; 
Sawyer  v.  Hopkins,  9  Shep.  268  ;  Jellison  v.  Goodwin,  43  Maine,  287 ;  2  Greenl.  Ev. 
§  418.  Proof  of  malice  in  Connecticut.  {Moore  v.  Stevenson,  27  Conn.  14.)  Until 
some  of  the  actionable  words  laid  have  been  proved,  evidence  of  the  quo  animo 
of  the  defendant  is  inadmissible.     (Abrams  v.  Smith,  8  Blackf.  95.) 

1983  Baboneau  v.  Farrell,  28  Eng.  Law  &  Eq.  R.  839;  15  C.  B.  360;  24  Law 
Jour.  Rep.  N.  S.  9,  C.  P. ;  1  Jur.  N.  S.  14 ;  Littlejohn  v.  Greeley,  13  Abb.  Pra.  Rep. 
41 ;  Suydam  v.  Moffat,  1  Sandf.  459 ;  Root  v.  King,  4  Wend.  113 ;  Garrett  v.  Dick- 
erson,  19  Md.  418 ;  see  Holt  v.  Parsons,  23  Texas,  9.  It  is  no  objection  to  a  re- 
covery for  the  slanderous  words  charged,  that  the  publication  of  the  same  words 
has  been  proved  against  the  defendant  in  a  former  action  between  the  same  par- 
ties, for  the  purpose  of  proving  malice.  (Swift  v.  Dickerman,  31  Conn.  285; 
Campbell  v.  Butts,  3  N.  Y.  173.) 


4S0  EVIDENCE  FOR  PLAINTIFF. 

plaintiff  may,  it  is  held,  in  some  cases,  give  in  evidence  other 
publications  by  the  defendant  of  defamatory  language  concern- 
ing the  plaintiff,  whether  it  be  the  same  as  or  other  than  the 
language  declared  upon,  if  of  the  like  import.1984  But  the  bet- 
ter opinion  appears  to  be,  that  evidence  of  a  charge  of  a  differ- 
ent nature  and  at  a  different  time  from  that  alleged  in  the  de- 
claration, is  inadmissible  to  prove  malice  or  for  any  purpose.1985 
This  is  in  effect  only  another  form  of  the  rule  that  actionable 
words  not  counted  upon  cannot  be  given  in  evidence,1986  unless 
a  suit  upon  them  is  barred  by  the  statute  of  limitations,1987  and 

I9S4  Burson  v.  Edwards,  1  Carter  (Ind.)  164;  Pearson  v.  Lemaitre,  6  Sc.  N.  S. 
607;  5  Man.  &  G.  700;  Delegal  v.  Highley,  8  C.  &  P.  444;  Elliotts.  Bogles,  31 
Penn.  St.  R.  65 ;  The  State  v.  Jeandell,  5  Hairing.  475 ;  Price  v.  Wall,  2  Quart. 
Law  Jour.  63.  Proof  may  be  given  of  the  publication  of  other  words  of  like  im- 
port. (Thompson  v.  Bowers,  1  Doug.  321;  Stearns  v.  Cox,  17  Ohio,  590;  Taylor 
v.  Moran,  4  Mete.  (Ky.)  127.)  Extracts  from  a  newspaper,  being  separate  and 
independent  libels  not  declared  on,  may  be  offered  in  evidence  to  prove  express 
malice  or  as  showing  the  quo  animo  ;  such  words  cannot  be  made  the  foundation 
of  a  recovery  of  damages  for  an  injury  the  plaintiff  may  have  suffered  from  them, 
but  can  only  affect  the  damages  by  showing  the  degree  of  the  malice.  ( Van 
Derveer  v.  Sutphin,  5  Ohio  (N.  S.)  293.) 

19B6  Howard  v.  Sexton,  4  Corns.  157.  Although  in  slander,  the  plaintiff,  to  prove 
the  animus,  may  show  a  repetition  of  the  words,  or  of  such  as  show  the  same 
train  of  thought,  yet  he  cannot  give  in  evidence  other  words  which  may  be  sub- 
ject of  another  action ;  held,  also,  that  it  appearing  that  the  plaintiff  had  re- 
covered in  another  action  against  the  defendant's  son,  what  passed  after  the  ver- 
dict, by  way  of  proposal  to  compromise  the  second  one,  was  admissible  to  show 
that  it  was  not  vexatiously  prosecuted.     (Dtffries  v.  Davies,  7  C.  <fe  P.  112.) 

1SB6  Rundell  v.  Butler,  7  Barb.  260;  IfeadY.  Daubigny,  Peake,  125;  and  see 
Campbell  v.  Butts,  3  Corns.  173;  Keenholtsy.  Becker,  3  Denio,  346;  Thomas  v. 
Croswell,  7  Johns.  264;  contra,  Duvall  v.  Griffith,  2  Har.  <fe  Gil.  30;  Scott  v.  Mc- 
Kinnish,  15  Ala.  662;  Long  v.  Chubb,  5  C.  &  P.  55 ;  Barton  v.  Brand,  3  Green, 
248;  Brittain  v.  Allen,  2  Dev.  120;  3  Dev.  167. 

1987  Inman  v.  Foster,  8  Wend.  602;  Throgmorton  v.  Davis,  4  Blackf.  174; 
Flamingham  v.  Boucher,  Wright,  746 ;  see,  also,  Lincoln  v.  Chrisman,  10  Leigh, 
338.  In  an  action  of  slander  for  words  imputing  perjury,  an  affidavit  of  the  de- 
fendant, on  which  an  indictment  had  been  preferred,  and  which  had  been  made 
so  long  before  as  to  be  barred  by  the  statute  of  limitations,  charging  the  plaintiff 
with  the  same  perjury  set  out  in  the  declaration,  is  admissible  in  evidence,  ae 
proof  of  the  repetition  of  the  same  words  in  a  different  form,  and  with  more  de- 
liberation, and  to  show  the  quo  animo.  (Randall  v.  Holsenbake,  3  Hill  (S.  C.) 
175. 


PROOF   OF  MALICE.  4S1 

tlieir  admission,  where  the  statute  has  run,  is  opposed  to  prin- 
ciple, as  it  in  effect  restores  a  cause  of  action  which  has  been 
taken  away  by  the  law.1988  It  seems  clear  that  a  repetition  by 
the  defendant  of  the  defamatory  matter  complained  of,  is  ad- 
missible to  prove  malice  in  fact ;  and  it  is  said  that  within  this 
rule  any  act  or  language  of  the  defendant  tending  to  show 
malice  beyond  that  implied  by  the  original  publication,  the  sub- 
ject of  the  action,  may  be  proved.1989 

§  393.  In  an  action  for  libel,  the  defendant  pleaded  the  gen- 
eral issue,  and  also  a  plea  under  the  6th  and  7th  Vict.,  c.  96, 
denying  actual  malice,  and  stating  an  apology.  On  the  trial, 
the  plaintiff,  in  order  to  prove  malice,  tendered  in  evidence 
other  publications  of  the  defendant,  going  back  above  six  years 
before  the  publication  complained  of,  held,  that  these  publi- 
cations were  admissible  in  evidence;1990  but  the  court  should, 
in  such  a  case,  call  attention  to  the  distance  of  time  elapsed  be- 
fore the  subsequent  statements,  and  that  those  statements  might 
have  referred  to  some  other  and  subsequent  matter,  so  as  not  to 
show  malice  at  the  time  of  the  publication  complained  of.1991 

§  394  A  plaintiff  may,  to  prove  malice,  give  evidence  of  a 
publication  by  the  defendant  made  subsequently  to  the  publica- 
tion declared  upon,  when  the  subsequent  publication  is  of  a 
like  import  with  that  declared  upon  or  relating  thereto,  or  is  not 
actionable  of  itself,  or  explains  any  ambiguity  in  the  matter 
declared  upon.1993     And  in  an  action  for  words  imputing  per- 

"i*  Root  v.  Lowndes,  6  Hill,  518. 

19t9  Fry  v.  Bennett,  28  N.  Y.  328.     Damages  recovered  for  previous  slander 
may  be  given  in  evidence  to  show  malice.    (Symmons  v.  Make,  1  M.  &  Rob.  477.) 

1990  Barrett  v.  Long,  16  Eng.  Law  &,  Eq.  Rep.  1 ;  3  Ho.  of  Lords  Cas.  395  ;  8 
Ir.  Law  Rep.  331. 

1991  Hemmings  v.  Gascon,  36  Law  Jour.  Rep.  252,  Q.  B.;  1  El.  B.  &  E.  346. 
"mPearcev.  Ormsby,  1   M.   &  Rob.  455;  Mix  v.  Woodward,   12  Conn.  262; 

Williams  v.  Miner,  18  Id.  464;  Symmons  v.  Blake,  1  M.  «fe  Rob.  477;  Baldwin  v. 
Soule,  6  Gray,  321 ;  Shock  v.  McVhesney,  2  Yeates,  473 ;  Smith  v.  Wyman,  4  Shep. 
13;  Howard  v.  Sexton,  4  Corns.  157;  Kendall  v.  Stone,  2  Sandf.  269;  Kennedy  v. 
Gifford,  19  Wend.  296;  Miller  v.  Kerr,  2  McCord,  285;  Pearson  v.  Le  Maitre,  6 
Sc.  N.  S.  607 ;  5  Man.  &  G.  700. 
31 


482  EVIDENCE   FOR  PLAINTIFF. 

jury,  the  plaintiff  was  allowed,  for  the  purpose  of  showing  the 
quo  ammo,  to  give  in  evidence  an  indictment  subsequently  pre- 
ferred by  the  defendant  against  him,  and  which  was  ignored.1993 
But  in  an  action  of  slander,  for  charging  the  plaintiff  with 
stealing  two  beds,  it  was  held  not  competent  for  the  plaintiff, 
for  the  purpose  of  showing  malice,  to  prove  that  the  defendant 
subsequently  entered  a  complaint  against  him,  before  a  magis- 
trate, for  stealing  a  lot  of  wood  and  old  iron  ;  first,  because  the 
words  used  in  the  complaint  did  not  relate  to  the  charge  which 
was  the  subject  of  the  action  ;  and  secondly,  because  such  using 
of  the  words  was  a  proceeding  in  a  course  of  justice,  before  a 
magistrate  having  jurisdiction  of  the  supposed  offence.1994 

§  395.  The  plaintiff  may,  it  seems,  to  prove  malice,  give 
evidence  of  defamatory  publications  by  the  defendant  concern- 
ing him,  after  the  commencement  of  the  action ;  but  the  author- 
ities are  conflicting.1995  In  general,  what  occurs  after  the  com- 
mencement of  the  action  is  inadmissible ;  but  where  the  words 
published  led  to  the  arrest  of  the  plaintiff  after  the  commence- 
ment of  his  action,  it  was  held  that  the  defendant  might  have 
excluded  all  evidence  of  what  took  place  after  the  commence- 
ment of  the  action,  but  having  consented  to  its  admission,  the 
jury  were  at  liberty  to  take  it  into  consideration.1996 

§  396.  Where  evidence  of  another  or  other  publications  than 
that  declared  upon  is  or  are  admitted  for  the  purpose  of  show- 
ing malice  only,  the  jury  should  be  instructed  that  it  is  admit- 
ted for  that  purpose  alone,  and  that  they  are  not  to  give  dam- 
ages for  other  than  the  words  charged  in  the  cleclaration.1997    An 

1093  Tate  v.  Humphrey,  2  Camp.  73,  n. 

1994  Watson  t.  Moore,  2  Cush.  133. 

1995  Howell  v.  Cheatem,  Cooke,  247 ;  Scott  v.  MonU'mger,  2  Blackf.  454 ;  Teacjle 
v.  I)eboy,  8  Blackf.  134;  Warner.  Chadwell,  2  Stark.  457.  Slanderous  words, 
spoken  since  the  suit  was  commenced,  are  admissible  in  evidence  to  show  the 
sense  in  which  the  words  laid  were  spoken.  ( Qa  Her  v.  M'Dowell,  Wright,  100; 
and  M Donald  v.  Murchison,  1  Dev.  7.) 

1096  Goslin  v.  Corry,  8  Sc.  N.  S.  21 ;  7  Man.  &  G.  343. 

1397  Scott  v.  McKinnish,  15  Ala.  662;  Barrett  v.  Long,  8  Ir.  Law  Rep.  331. 


PKOOF   OF  MALICE.  483 

instruction  was  given  to  the  jury  to  the  effect  that  a  letter 
written  by  defendant  and  given  in  evidence  by  the  plaintiff, 
was  admissible  only  to  show  malice,  and  for  no  other  purpose, 
and  that  they  had  a  right  to  award  such  damages  to  plaintiffs 
as  they  thought  them  entitled  to  under  all  the  circumstances 
proved  in  the  case ;  held,  that  the  caution  to  the  jury  in  respect 
to  the  effect  of  the  letter  was  not  sufficient.1998 

§  397.  Evidence  tending  to  make  out  an  admission  by  the 
defendant,  subsequently  to  the  speaking  of  the  words,  of  a  dis- 
pute existing  between  him  and  the  plaintiff  before  the  speaking 
of  the  words,  about  a  sum  of  money  claimed  to  be  due  from 
the  defendant  to  the  plaintiff,  is  admissible  to  show  express  mal- 
ice.1999 So  to  prove  malice  plaintiff  may  give  evidence  tending 
to  show  that  defendant  coveted  the  possession  of  plaintiff's 
land,  and  hoped  by  defaming  him  to  compel  him  to  remove;2000 
but  he  cannot  show  that  defendant  had,  by  promises  of  reward 
and  threats  of  vengeance,  endeavored  to  prevent  the  attendance 
of  witnesses  for  plaintiff.2001 

§  398.  In  an  action  of  slander  for  charging  an  infant  with 
larceny,  evidence  of  a  previous  quarrel  between  the  defendant 
and  the  plaintiff's  father  and  next  friend,  is  inadmissible  to 
prove  malice  in  the  defendant  towards  the  plaintiff.2002  In  an 
action  against  the  publisher  of  the  magazine  in  which  the  libel 
was  published,  evidence  of  personal  malice  of  the  editor  against 
the  plaintiff  was  held  inadmissible.2003  So  the  refusal  of  the 
editor  of  a  newspaper  to  publish  a  retraction  of  the  libel  was 
held  not  to  be  evidence  of  malice  against  the  publisher  of  such 
newspaper.2004     On  the  trial  of  an  action  for  a  libel  in  a  news- 


1998  Letton  v.  Young,  2  Mete.  (Ky.)  558.  ( 

1890  Simpson  v.  Robinson,  18  Law  Jour.  Rep.  73,  Q.  B. ;  13  Jur.  187. 

sooo  Morgan  y  Livingston,  2  Rich.  5*73. 

2001  Kirkaldie  v.  Paige,  17  Verm.  256. 

2002  York  v.  Pease,  2  Gray,  282. 

2003  Robertson  v.  Wylde,  2  M.  &  Rob.  101. 

2004  Edsall  v.  Brooks,  2  Robertson,  414;  33  How.  Tra.  Rep.  191. 


4S4  EVIDENCE  FOR  PLAINTIFF 

paper,  it  appeared  that  the  defendant  employed  F.  to  print  the 
newspaper  in  question,  and  that  S.,  one  of  F.'s  workmen,  had 
set  up  the  article  in  the  absence  of  the  defendant  and  of  the 
editor  of  the  paper,  held  that  the  plaintiff  could  not  ask  a  wit- 
ness if  he  heard  S.  express  any  ill-will  towards  the  plaintiff.2005 
In  the  same  case,  it  was  held  that  the  plaintiff  might  give  in 
evidence  an  article  published  in  a  subsequent  number  of  the 
same  newspaper,  with  the  defendant's  knowledge  and  consent, 
justifying  the  publication  of  the  article  complained  of  as  libel- 
lous, though  such  article  was  not  published  until  after  the 
action  was  commenced. 

§  399.  The  language  itself  may  be  evidence  of  malice,  and 
where  the  occasion  renders  the  publication  prima  facie  privi- 
leged, the  jury  may  take  the  language  into  consideration  to 
determine  the  intent  with  which  the  publication  was  made.2006 

§  400.  Interposing  a  justification  which  the  defendant  either 
abandons  or  fails  to  prove,  may  be  regarded  as  an  aggravation 
of  the  original  wrong,  and  may  be  taken  into  consideration 
by  the  jury  in  estimating  damages.2007    It  is  evidence  of  mal- 

2005  Goodrich  v.  Stone,  11  Mete.  486. 

2006  Wright  v.  Woodgate,  2  C.  M.  <fc  R.  573;  Tyrw.  &  G.  12;  Gilpin  v.  Fowler, 
•9  Ex.  615;  Cooke  v.  Wildes,  5  El.  &  BL  328;  Liddle  v.  Hodges,  3  Bosw.  537;  18 
N.  Y.  48 ;  Howard  v.  Sexton,  4  N.  Y.  161 ;  Fero  v.  Ruscoe,  Id.  162;  Garrett  v. 
Dickerson,  19  Md.  418;  Hotchkiss  v.  Porter,  30  Conn.  414;  WTiite  v.  Nicholls,  3 
How.  IT.  S.  Rep.  266 ;   Tuson  v.  Evans,  12  Adol.  &  El.  733,  said  to  be  overruled. 

2007  Fero  t.  Ruscoe,  4  N.  Y.  162;  Wilson  v.  Robinson,  14  Law  Jour.  Rep.  196, 
Q.  B. ;  9  Jurist,  726 ;  Lee  v.  Robertson,  1  Stew.  138 ;  Richardson  v.  Roberts,  23 
Geo.  215;  Pool  v.  Dcvers,  30  Ala.  672;  Updegrove  v.  Zimmerman,  13  Penn.  St.  R. 
(1  Harris),  619;  Gorman  v.  Sutton,  32  Id.  247  ;  Doss  v.  Jones,  5  How.  (Miss.), 
158;  Robinson  v.  Drummond,  24  Ala.  74;  Beasley  v.  Meigs,  16  111.  139;  Spencer 
v.  McMasters,  Id.  405;  Smith  v.  Wyman,  4  Shep.  13;    contra,  Murphy  v.   Stout, 

1  Smith,  256;  Shortley  v.  Miller,  Id.  395;  Shank  v.  Case,  1   Carter  (Ind.),  170; 
Millison  v.  Sutton,  Id.  508  ;  Starr  v.  Harrington,  Id.  515 ;  and  see  Swails  v.  Butcher, 

2  Carter,  84 ;  Sloan  v.  Petrie,  15  111.  425  ;   Tliomas  v.  Dunaway,  30  HI.  373 ;  Ray- 
ner  v.  Kinney,  14  Ohio,  N.  S.  283  ;  Pallet  v.  Sargent,  36  N.  Hamp.  496. 

The  judge,  in  addressing  the  jury,  commented  upon  the  fact  that  the  defend- 
ant had  refused,  at  the  trial,  to  make  an  apology  and  withdraw  his  justification, 


IN   REPLY.  4S5 

ice,2008  and  of  continued  malice.2009  A  justification  on  the  ground 
of  truth  was  held  not  to  be  an  aggravation  of  the  charge,  where 
the  defendant  had  reason  to  believe  the  charge  to  be  true,2010  or 
where  the  plea  of  truth  was  so  defective  that  no  judgment  could 
have  been  entered  upon  it,2011  or  where  the  plea  was  withdrawn 
before  the  trial.2012  Where  in  an  action  for  a  libel  defendant 
pleaded  not  guilty  and  a  justification  ;  he  offered  no  proof  of 
the  justification,  but  gave  evidence  to  show  that  the  publica- 
tion was  made  under  circumstances  rendering  it  a  privileged 
communication.  Held,  that  the  jury,  in  forming  their  opinion 
(upon  the  first  issue,  whether  or  not  the  communication  was 
privileged),  ought  not  to  take  into  consideration  the  fact  that 
the  justification  had  been  pleaded  and  abandoned.2013 

§  401.  In  an  action  for  a  libel,  the  defendant,  to  justify  a 
charge  made  by  him  against  the  plaintiff  of  unfairness  and  par- 
tiality as  collector  of  the  United  States  taxes,  proved  that  the 
plaintiff  had  refused  to  receive  bills  of  a  certain  bank  in  pay- 
ment of  a  tax.  To  rebut  this  evidence,  the  plaintiff*  offered  a 
letter  of  instructions  to  him  from  the  commissioner  of  the  reve- 
nue, designating  the  description  of  the  bills  which  the  plaintiff 
should  receive.  It  was  held  that  such  evidence  was  admissible 
as  negativing  the  charge  of  unfairness  and  partiality  in  the 
plaintiff's  conduct.2014     It  was  in  the  same  case  held  that  the 

though  he  gave  no  evidence  in  support  of  it,  as  evidence  of  malice.  Held  no 
misdirection.  {Simpson  v.  Robinson,  11  Law  Times,  266;  18  Law  Jour.  Rep.  73, 
Q.  B. ;  13  Jur.  187.)  That  the  defendant  procured  evidence  to  prove  the  truth  of 
his  charges,  and  then  declined  to  plead  in  justification,  may  be  projoerly  referred 
to  the  jury  on  the  question  of  malice,  though  not  on  that  of  damages.  (Bodwell 
v.  Osgood,  3  Pick.  379.) 

2uoe  Jackson  v.  Stetson,  15  Mass.  48  ;  Aldermanx.  French,  1  Pick.  1. 

2009  Wilson  v.  Nations,  5  Yerg.  211. 

8010  Byrket  v.  Monohon,  7  Blackf.  83;  and  see  Shortley  v.  Miller,  1  Smith,  395. 

2011  Braden  v.  Walker,  8  Humph.  34. 

2018  Gilmorc  v.  Borders,  2  How.  (Miss.),  824. 

2013  Wilson  v.  Robinson,  7  Q.  B.  68 ;    9  Jurist,  726;    14  Law  Jour.  N.  S.  196, 
Q.  B. 

2014  Slow  v.  Converse,  3  Conn.  325. 


4S6  EVIDENCE   FOR  PLAINTIFF. 

plaintiff  could  not  repel  a  charge  of  partial  and  unjust  conduct, 
in  the  exaction  of  commissions  not  authorized  by  law,  by  show- 
ing that  such  commissions  were  taken  honestly,  through  a  mis- 
taken construction  of  the  law. 


CHAPTER   XVII. 


EVIDENCE   FOK   DEFENDANT. 


WJtat  evidence  is  admissible  depends  upon  what  plea  or  an- 
swer is  interposed.  What  7nay  be  proved  under  the  general 
issue.  Evidence  to  support  a  justification.  Plaintiff  ^  s  rep- 
utation in  issue.  Inquiry  limited  to  plaintiff  ">s  general  repu- 
tation— and  fa  his  reputation  prior  to  the  publication  com- 
plained of.  Truth  in  mitigation.  Conduct  of  plaintiff 
leading  to  belief  in  truth.  Report  or  suspicion  of  plaintiff' '<§ 
guilt  in  mitigation.  Plaintiffs  standing  and  condition 
in  society.  Prior  or  subsequent  declarations  of  defendant. 
Heat  and  passion.  Previous  publications  by  the  plaintiff . 
Controversies  between  plaintiff  and  defendant  prior  to  the 
publication.     Circumstances  not  admissible  in  mitigation. 

§  402.  What  evidence  the  defendant  may  give  depends  upon 
what  plea  or  answer  he  has  interposed.  His  proof  must  corre- 
spond with  his  plea.  Under  thejcommon  law  system  of  pleading 
and  procedure,  many  matters  of  defence  might  be  given  in  evi- 
dence under  the  general  issue  which  now  require  to  be  specially 
pleaded.  So,  too,  under  the  common  law  system,  mitigating 
circumstances  could  not  be  pleaded,  but  were  admitted  in  evi- 
dence under  the  general  issue  ;  and  this  is  still  the  rule  where 
there  is  not  any  statutory  provision  on  the  subject.  In  ISfew 
York  and  some  other  States  provision  is  made  by  statute  allow- 
ing the  defendant,  in  actions  for  slander  and  libel,  to  set  forth  in 
his  answer  the  mitigating  circumstances  he  will  prove  upon  the 
trial.  Some  of  the  effects  of  these  statutory  provisions  have 
already  been  referred  to  under  the  head  of  Pleading  ;  other  ef- 
fects will  he  noticed  hereafter. 


488  EVIDENCE  FOR  DEFENDANT. 

§  403.  Under  the  general  issue  the  defendant  was  at  liberty 
to  prove  anything  which  destroyed  the  plaintiff's  cause  of  ac- 
tion ;2013  he  might  disprove  the  fact  of  publication,  or  show  that 
the  matter  published  was  not  of  an  injurious  character,  or  that 
the  publication  was  privileged ; 2016  as  being  a  fair  comment  on 
a  matter  of  public  concern  ; 2017  any  circumstance  which  tended 
to  disprove  malice  ;2018  or  that  plaintiff  procured  the  publication 
with  a  view  to  an  action ; m9  and  where  the  libel  consisted  of  a 

2015  Barber  v.  Dixon,  1  Wils.  45;  and  see  0' Donoghue  v.  M' Govern,  23  Wend. 
26.  Where  the  words  clearly  impute  a  felony,  if  the  defendant  do  not  justify,  he 
cannot  show  that  the  words  related  to  an  act  which  might  have  been  innocent. 
(Laine  v.  Wells,  7  Wend.  175.) 

2016  O'Brien  v.  Clements,  15  Law  Jour.  Rep.  285,  Ex. ;  3  D.  &  L.  676.  Where  the 
defence  is  privileged  communication,  it  need  not  be  specially  pleaded.  (Lillia  v. 
Price,  1  Nev.  &  P.  16 ;  5  Dowl.  432  ;  Richards  v.  Boulton,  4  Up.  Can.  Q.  B.  Rep. 
O.  S.  95 ;  Abrams  v.  Smith,  8  Blackf.  95.)  But  it  may  be  specially  pleaded, 
{Dunn  v.  Winters,  2  Humph.  512)  and  it  seems  it  must  be  pleaded  in  Massachu- 
setts. (Goodwin  v.  Daniels,  7  Allen  (Mass. ),  61.)  In  New  York  it  must  be  pleaded. 
In  England,  in  actions  of  slander  of  the  plaintiff  in  his  office,  profession,  or  trade, 
the  plea  of  not  guilty  will  operate  to  the  same  extent  precisely  as  at  present  in 
denial  of  speaking  the  words,  of  speaking  them  maliciously  and  in  the  sense  im- 
puted, and  with  reference  to  the  plaintiff's  office,  profession,  or  trade;  but  it  will 
not  operate  as  a  denial  of  the  fact  of  the  plaintiff  holding  the  office,  or  being  in 
the  profession  or  trade  alleged.  (Reg  Gen.  H.  T.,  4  Will.  4 ;  2  C.  &  M.  23 ;  10 
Bing.  477 ;  3  Nev.  &  M.  9 ;  5  B.  <fc  Adol.  ix.)  All  matters  in  confession  and 
avoidance  shall  be  specially  pleaded.     (lb.) 

™"Luean  v.  Smith,  38  Eng.  Law  &  Eq.  R.  395. 

2016  Weaver  v.  Hendrick,  30  Mis.  (9  Jones)  502;  Smith  v.  Smith,  39  Penn.  St.  R. 
441;  SimsY.  Kinder,  1  Carr.  279;  Van  Deusen  v.  Sutphin,  5  Ohio  N.  S.  293; 
Swift  v.  Dickerman,  31  Conn.  285  ;  Williams  v.  Miner,  18  Conn.  464 ;  Thomas  v. 
Dunaway,  30  111.  373;  Brunswick  v.  Pepper,  2  C.  &  K.  683;  Remington  v.  Congdon, 
2  Pick.  310 ;  Gilman  v.  Lowell,  8  Wend.  573.  And  in  New  York,  under  a  general 
denial  and  a  proper  statement  in  the  answer,  any  circumstance  to  disprove  malice 
may  be  shown,  although  it  tended  to  prove  the  truth  of  the  charge.  (Bush  v. 
Prosser,  11  N.  Y.  347;  Bisby  v  Shaw,  12  N.  Y.  67;  Dolevin  v.  Wilder,  34  How. 
Pra.  Rep.  488.)  Where  there  is  any  the  slightest  doubt  in  the  mind  of  the 
judge  as  to  whether  the  facts  set  up  in  mitigation  tend  to  disprove  malice,  he 
should  permit  them  to  be  proved,  and  submit  the  question  of  malice  to  the  jury 
(Id.) 

2019  Sutton  v.  Smith,  13  Miss.  120.  Plaintiff's  motive  in  bringing  the  action  is 
immaterial  to  the  issue  on  a  plea  of  justification.  (Bradley  v.  Kennedy,  2  Greene, 
(Iowa)  231.) 


PROOF   OF  JUSTIFICATION.  489 

report  of  proceedings  the  publication  of  which  was  not  privi- 
leged, it  was  held  that  it  might  be  shown  under  the  general 
issue  and  in  mitigation  that  the  report,  although  not  correct, 
was  an  honest  one,  and  intended  to  be  a  fair  account  of  the 
transaction  referred  to.2020  The  general  issue  amounted  to  a 
denial  of  the  special  damage,3021  and  the  general  good  reputa- 
tion of  the  plaintiff  [§  406],  but  it  admitted  the  inducement2022 
and  the  falsity  of  the  charge.2023  The  defences  of  accord  and 
satisfaction,  former  recovery,  truth  and  illegality  of  plaintiff's 
occupation,  must  be  specially  pleaded  [§§  250,  251,  354,  183.] 

§  404.  As  to  the  proof  of  a  justification,  it  is  held  that,  in  an 
action  for  slander  or  libel,  the  charge  complained  of  being  the 
commission  of  a  criminal  offence,  the  same  degree  of  evidence 
is  necessary  to  sustain  a  plea  of  justification  as  would  be  neces- 
sary to  convict  the  plaintiff  in  a  criminal  prosecution  for  the 
same  offence.2024  At  least  the  defendant  must  prove  the  crime 
charged  to  the  satisfaction  of  the  jury,2025  and  beyond  a  reason- 
able doubt.2026  The  plea  must  be  substantially  proved,2027  or  the 
plaintiff  is  entitled  to  recover.2028  Where  the  charge  is  crime, 
a  conviction  of  the  plaintiff  of  the  crime  is,  in  general,  admis- 
sible to  sustain  a  justification,  but  it  is  only  prima  facie  evi- 

5080  Smith,  v.  Scott,  2  Car.  &  K.  580  ;  and  'see  East  v.  Chapman,  1  Mo.  &  Malk. 
46 ;    Charlton  v.  Watson,  6  C.  &  P.   385. 
2021  Wilby  v.  Elston,  8  C.  B.  142. 
iu™Fradleyv.  Fradley,  8  C.  &  P.  5*72  ;  Power  v.  Heming,  10  M.  &  W.  564. 

2023  Sheahan  v.  Collins,  20  111.  325. 

2024  Landis  v.  Shanklin,  1  Carter,  (Ind.)  92;  Shoulty  v.  Miller,  lb.  554;  Gants 
v.  Vinard,  lb.  476;  Newbit  v.  Statuck,  35  Maine,  (5  Red.)  315;  Dwinell  v.  Aiken, 
2  Tyler,  75;  Seely  v.  Blair,  Wright,  683  ;  Steinman  v.  Mc  Williams,  6  Barr,  170; 
Willmet  v.  Harmer,  8  C.  &  P.  695  ;  Swails  v.  Butcher,  2  Carter,  (Ind.)  84;  Wood- 
beck  v.  Keller,  6  Cowen,  118;  contra,  Folsom  v.  Braivn,  5  Foster,  (N.  Hamp.)  114; 
Kincade  v.  Bradshaw,  3  Hawks,  63. 

•joss  Qjrutt  v.  Earlywine,  4  Blackf.  460.     Evidence  of  plaintiffs  being  suspected 
is  not  sufficient.     (Commons v.  Walters,  1  Porter,  323.) 
w™  Shortly  v.  Miller,  1  Smith,  395. 

2027  Napier  v.  Daniell,  3  Sc.  417 ;  2  Hodges,  187;  3  Bing.  N.  C.  77. 
202s  Kincade  v.  Bradshaw,  3  Hawks,  63. 


490  EVIDENCE  FOR   DEPENDANT. 

dence,  and  must  be  excluded  if  the  defendant  was  a  witness  in  the 
criminal  prosecution.2029  A  plea  of  justification  of  libel,  that 
the  plaintiff  had  been  guilty  of  bigamy,  requires  as  strong 
proof  as  on  an  indictment  for  that  offence  ;  but  a  plea  justify- 
ing a  charge  of  polygamy,  held  sustained  by  proof  of  actual 
marriage  in  two  instances,  and  of  cohabitation  and  reputation 
as  to  a  third.2030  To  sustain  a  plea  of  justification  of  a  charge 
of  perjury,  the  testimony  of  two  witnesses  at  least,  or  of  one 
witness  and  strong  corroborating  circumstances,  are  necessary.2031 
And  the  defendant  must  prove  not  only  that  the  plaintiff's  tes- 
timony was  false,  but  that  it  was  wilfully  and  corruptly  false.2032 
The  corrupt  intent,  however,  is  inferable  from  the  falsity  of  the 
testimony.2033  To  establish  the  justification,  the  testimony 
which  the  plaintiff  gave  on  the  trial  when  the  alleged  perjury 
was  committed,  may  be  received  as  evidence  to  be  considered 
by  the  jury.2034  Under  an  allegation  in  the  libel  that  the  defend- 
dant  had  crushed  the  Hygeist  system  of  wholesale  poisoning, 
and  that  several  vendors  had  been  convicted  of  manslaughter, 
held,  that  it  was  not  necessary  for  the  defendant  to  prove  that 
the  system  had  been  entirely  crushed,  and  that  proof  of  the 

2029 Maybee  v.  Avery,  18  Johns.  352.  This  was  at  the  time  when  parties  could 
not  be  witnesses  in  their  own  behalf  in  civil  actions.  Where  they  can  be  such 
witnesses,  probably  the  exception  stated  in  the  text  does  not  apply. 

2030  Wilmet  v.  Harmer,  8  C.  &  P.  695. 

2031  Bradley  v.  Kennedy,  2  Greene  (Iowa)  231 ;  Steinman  v.  Mc  Williams,  6  Barr, 
170;  Byrket  v.  ilonohon,  7  Blackf.  83  ;    Woodbeck  v.  Keller,  6  Cowen,  118;  New 

bit  v.  Statuck,  35  Maine,  (5  Red.)  31 ;  Dwinelh  v.  Aiken,  2  Tyler,  75.  This  rule  was 
somewhat  qualified  in  Kvicadc  v.  Bradshaw,  3  Hawks,  63;  Spruil  v.  Cooper,  16 
Ala.  791.  See  3  Phillips'  Ev.,  Cowen  <fe  Hill's,  and  Edwards'  notes,  tit.  in  index 
iSlantler. 

2039 McKinly  v.  Robb,  20  Johns.  351.  That  is  to  say  he  must  prove  technical 
perjury.     (Hicks  v.  Rising,  24  111.  566.) 

2033  Hopkins  v.  Smith,  3  Barb.  599. 

ia3iNewbit  v.  Statuck,  35  Maine,  (5  Red.)  315 ;  Arlington  v.  Jones,  9  Port.  139. 
It  must  be  shown  that  the  false  swearing  was  in  regard  to  a  material  point. 
(McGlenary  v.  Keller,  3  Blackf.  488.)  In  an  action  of  slander,  for  charging  the 
plaintiff  with  perjury  in  a  judicial  proceeding,  the  defendant  on  the  plea  of  "not 
guilty,"  may  prove  what  the  words  sworn  by  the  plaintiff  were,  in  mitigation  of 
damages.     (Grantv.  Hover,  6  Munf.  13.) 


PROOF   OF  JUSTIFICATION.  491 

conviction  of  two  vendors  for  manslaughter  sufficiently  proved 
the  plea,  although  the  evidence  as  to  the  death  being  occasioned 
by  not  complying  with  the  printed  regulations  in  some  respects 
varied  from  the  allegation,  there  being  evidence  for  the  jury  as 
to  the  cause  of  death.3035 

§  405.  Where  the  words  laid  charge  the  plaintiff  with  hav- 
ing committed  a  certain  offence,  evidence  will  not  be  received 
that  he  committed  a  different  offence,  neither  with  the  same  or 
with  other  persons.2036  As  where  the  plaintiff  was  charged 
with  adultery  with  J.  S.,  it  was  held  that  proof  of  adultery 
with  others  than  J.  S.  could  not  be  received.2037  Where  the 
plaintiff  was  charged  with  keeping  a  house  of  ill-fame,  it  was 
held  that  evidence  of  unchaste  and  lascivious  conduct  of  the 
plaintiff's  family,  not  establishing  the  offence  was  inadmissible 
for  any  purpose.2038  And  where  the  charge  was  of  perjury  on 
a  certain  occasion,  held  that  defendant  could  not  justify 
by  proof  of  perjury  on  any  other  occasion  than  that  alleged.2039 
To  a  charge  that  defendant  had  had  connexion  with  a  mare, 
innuendo  been  guilty  of  the  crime  against  nature  with  a  beast, 
defendant  gave  notice  that  he  would  prove  on  the  trial  that 
plaintiff  had  had  connexion  with  a  cow,  and  on  the  trial  offered 

2035  Morrison  v.  Harmer,  3  Bing.  N.  C.  755. 

2036  Pallet  v.  Sargeant,  36  N.  H.  496;  Skarpe  v.  Stephenson,  12  Ired.  348;  Bar- 
thelemy  v.  The  People,  2  Hill,  257.  Under  a  plea  of  justification  for  charging 
plaintiff  with  fornication  with  a  certain  man,  evidence  that  her  child  is  a  bastard 
is  not  sufficient.  (Richardson  v.  Roberts,  23  Geo.  215.)  Where  the  words  charged 
the  stealing  of  D.'s  hay,  and  the  defendant  offered  evidence  to  prove  that  the  hay, 
the  subject  of  the  theft  so  charged,  was  the  joint  property  of  the  plaintiff  and  D., 
so  that  in  legal  effect  no  such  crime  was  or  could  have  been  committed,  it  was 
held,  that  as  the  charge  was  unequivocally  a  charge  of  theft,  so  intended  and  so 
received,  the  evidence  offered  by  the  defendant  was  inadmissible.  (  Williams  v. 
Miner,  18  Conn.  464.) 

2037  Matthews  v.  Davis,  4  Bibb,  173 ;  and  see  Walters  v.  Smoot,  11  Ired.  315. 
203B  Bush  v.  Prosser,  13  Barb.  221. 

2089  Aldnch  v.  Brown,  11  Wend.  596;  Whitaker  v.  Carter,  4  Ired.  461.  But 
where  the  charge  was  larceny,  held  that  defendant  might  offer  evidence  to  prove 
a  particular  larceny  of  the  same  description  as  that  charged.  {Adams  v.  Ward, 
1  Stew.  42.) 


493  EVIDENCE  FOR  DEFENDANT. 

to  prove  the  allegation  in  his  notice,  the  court  refused  to  receive 
it,  either  in  bar  or  in  mitigation,  on  the  ground  that  it  was  not 
a  justification  of  the  specific  charge  laid,  but  of  another  charge 
distinct  as  to  the  subject-matter.2040  A  libel  charging  hard- 
ness towards  the  poor,  dissoluteness  of  morals,  and  habits 
of  vice  and  calumny,  as  conclusions  deducible  from  particular 
instances  enumerated  and  arranged  in  it,  cannot  be  supported 
by  proof  of  other  instances  of  conduct,  not  detailed  or  alluded 
to  in  it.2041 

§  406.  The  plea  of  not  guilty  put  in  issue  the  general  char- 
acter [reputation]  of  the  plaintiff,  and  therefore  upon  a  plea  of 
not  guilty  only,  the  defendant  might  give  in  evidence  in  miti- 
gation the  general  bad  character  [reputation]  of  the  plaintiff, 
he/ore  and  at  the  time  of  the  publication  complained  of.  This 
"  principle  so  much  discussed  at  an  early  day  and  for  a  time  left 
unsettled,  has  since  been  so  well  established  by  authority  as  not 
now  to  be  open  for  discussion;2042  and  such  evidence  was  also 

™40  Andrews  y.  Vanduzer,  11  Johns.  38. 

2041  Barthelemy  v.  The  People,  2  Hill,  248. 

8045  Jewett,  J.,  Hamer  v.  McFarlin,  4  Denio,  509,  citing  Foot  v.  Tracy,  1  Johns. 
46;  Springsteiny.  Field,  Anthon's  N.  P.  185;  Paddock  v.  Salisbury,  2  Cow.  811 
Douglass  v.  Tousey,  2  Wend.  352  ;  Root  v.  King,  7  Cow.  613  ;  S.  C.  in  error,  4 
Wend.  113;  and  see  Gihnan  v.  Lowell,  8  Wend.  573;  Scott  r.  Mcklmiish,  15  Ala 
662;  Popev.  Welsh,  18  Ala.  631;  Fuller  v.  Bean,  31  Ala.  654;  Anthony  v.  Ste 
phens,  1  Miss.  254;  Bryan  v.  Gurr,  27  Geo.  378;  Eastland  v.  Caldwell,  2  Bibb 
21;  Bowditch  v.  Peckham,  1  Chip.  145;  Bridgman  v.  Hopkins,  34  Verm.  532 
Lamos  v.  Snell,  6  N.  Hamp.  413 ;  Sawyer  v.  Eifert,  2  N.  &  M.  511 ;  Seymour  v 
Morrill,  1  Root,  459  ;  Vicky.  Whitfield,  2  Ham.  222  ;  Be  Witty.  Greenfield,  5  Ham 
225  ;  Brunson  v.  Lynde,  1  Root,  354  ;  Wolcott  t.  Hull,  6  Mass.  514  ;  Alderman  v 
French,  1  Pick.  1 ;  Parkhurst  v.  Ketchum,  6  Allen,  406  ;  Buford  v.  McLuniff,  1  N 
&  M.  268;  Henry  v.  Norwood,  4  Watts,  347;  Young  v.  Bennett,  4  Scam.  43;  Sa?i 
ders  v.  Johnson,  6  Blackf.  50;  McCabev.  Platter,  6  Blackf.  405;  Burke  v.  Mitter 
6  Blackf.  155;  Steinman  v.  Mc  Williams,  6  Barr,  170;  McNutt  v.  Young,  8  Leigh 
542;  Stone  v.  Varney,1  Mete.  86;  Bowenv.  Hall,  12  Mete.  232.  Sheahan  v.  Col- 
lins, 20  111.  325  ;  Bell  v.  Parke,  11  Irish  Law  Rep.  485.  As  to  the  rule  in  Eng- 
land, see  Jones  v.  Stevens,  11  Price,  235,  where  it  is  said,  it  is  not  competent  to  a 
defendant  to  plead  a  justification,  as  of  plaintiffs  general  bad  character,  in  gen- 
eral and  indefinite  terms,  but  he  is  bound  to  state  facts  specially  to  give  the  plain- 
tiff an  opportunity  of  denying  them ;  such  pleas  are  demurrable ;  and  it  is  an 


PLAINTIFFS   REPUTATION.  493 

admissible  where  the  defendant,  in  addition  to  not  guilty,  put 
in  a  plea  of  justification,  and  gave  evidence  to  support  it,  but 
failed  to  establish  it.2043  Whether  in  New  York  such  evidence 
would  be  admissible  under  a  general  denial  and  without  any 
circumstances  in  mitigation  set  up  In  the  answer,  does  not  ap- 
pear to  have  been  decided  in  any  reported  case.  In  our  opinion, 
to  entitle  a  defendant  in  the  courts  of  New  York  to  question 
the  general  character  of  the  plaintiff,  he  should  state  in  his 
answer  his  intention  to  give  such  evidence  on  the  trial.2044 

§  407.  When  an  inquiry  into  the  reputation  of  the  plain- 
tiff is  permissible,  it  is  his  general  reputation  taken  as  a  whole, 
and  not  his  reputation  as  to  any  particular  act  or  in  any  par- 
ticular transaction,  that  is  to  be  inquired  of;2045  and,  therefore, 
evidence  cannot  be  given  of  his  guilt  of  any  specific  act  of 
misconduct;2046  as  that  he  had  been  guilty  of  false-swearing.2047 

abuse  of  the  court  to  put  them  on  record;  neither  can  he  any  more  be  permitted 
to  give  particular  or  general  evidence  of  that  nature  in  mitigation  of  damages, 
than  to  plead  it  in  bar  of  the  action.  See  Morris  v.  Lane/dale,  2  B.  &  P.  284.  Evi- 
dence of  general  bad  reputation  of  plaintiff  was  rejected,  there  being  no  plea 
of  justification.  (Edgar  v.  Newell,  24  Up.  Can.  Q.  B.  Rep.  215  ;  Myers  v.  Curry, 
22  Id.  470.)  In  an  action  for  slander  for  charging  the  plaintiff,  a  female,  with 
want  of  chastity,  the  judge  directed  the  jury  "  that  if  they  should  find  that 
plaintiff  had  so  destroyed  her  character  by  her  own  lewd  and  dissolute  conduct 
as  to  have  sustained  no  injury  from  the  words  spoken,  they  might  give  only  nom- 
inal damages."  (Flint  v.  Clark,  13  Conn.  361 ;  and  see  Conroev.  Conroe,  47  Penn. 
St.  R.  198.) 

2043  Harner  v.  McFarlin,  4  Denio,  509.  It  was  held  otherwise  in  Jackson  v. 
Stetson,  15  Mass.  48,  and  that  case  was  followed  in  Alderman  v.  French,  1  Pick. 
1.  But  Jackson  v.  Stetson  was  questioned.  Cilley  v.  Jenness,  2  N.  Hamp.  89; 
WJiitaker  v.  Freeman,  1  Dev.  280;  and  see  Stone  v.  Varney,  7  Mete.  86 ;  2  Stark.  Ev. 
878;  and  the  cases  cited  in  the  last  preceding  note.  There  being  no  plea  of  just- 
ification, evidence  of  plaintiff's  bad  character  in  mitigation  rejected.  (Brace- 
girdle  v.  Bailey,  1  F.  &  F.  536.) 

2044  Anon.,  8  How.  Pra.  Rep.  434  ;  and  see  Stiles  v.  Comslock,  9  Id.  48. 

2045  Steinman  v.  Mc  Williams,  6  Barr,  170.J 

2048  Andrews  v.  Van  Denser,  11  Johns.  38;  Vick  v.  Whitfield,  2  Ham.  222; 
Dewitt  v.  Greenfield,  5  Ham.  225;  Lamos  v.  Snell,  6  N.  Hamp.  413;  Sawyer  v. 
Eijert,!  N.  <fe  M.  511 ;  Burke  v.  Mi.ller,  6  Blackf.  155;  Freeman  v.  Price,  2  Bai- 
ley, 115;  Ridley  v.  Perry,  4  Shep.  21 ;  Matthews  v.  Davis,  4  Bibb,  173;  Bowen  v. 
Ball,  12  Met.  232;  Parkhurst  v.  Ketchum,  6  Allen,  406.  . 

2047  Luther  v.  Skceu,  8  Jones'  Law  (N.  C),  356. 


49  i  EVIDENCE  FOR  DEFENDANT. 

"Where  the  charge  was  that  the  plaintiff,  a  physician,  had  no 
professional  knowledge  or  skill,  and  lost  almost  all  his  patients, 
it  was  held  that  proof  of  particular  instances  in  which  the 
plaintiff  had  shown  want  of  knowledge  and  skill,  for  the  pur- 
pose of  mitigating  damages,  was  inadmissible.2048  And  al- 
though it  has  been  said  that  when  a  defendant  may  give  evi- 
dence of  the  general  bad  reputation  of  the  plaintiff,  he  is  not 
confined  to  the  subject-matter  of  the  defamation  complained 
of,2049  yet  in  an  action  for  charging  the  plaintiff  with  perjury, 
it  was  held  erroneous  to  admit  evidence  of  his  general  bad 
character  for  truth.2050  And  where  the  charge  as  proven  was 
of  burning  a  jail  and  murdering  a  man  in  it,  but  there  was 
some  evidence  that  it  was  only  of  aiding  an  escape  from  the 
jail,  held,  that  the  evidence  that  the  defendant  was  reputed 
guilty  of  the  latter  offence,  was  inadmissible  for  any  pur- 
pose.2051 The  defendant  imputed  to  the  plaintiff,  who  was  a 
clergyman,  these  words :  "  Mr.  S.  said  the  blood  of  Christ  had 
nothing  to  do  with  our  salvation,  more  thaD  the  blood  of  a 
hog."  Held,  that  testimony  tending  to  prove  that  the  plaintiff 
denied  the  divinity  of  Christ  and  the  doctrine  of  his  atone- 


2048  Swift  v.  Dickerman,  31  Conn.  285.  And  such  evidence  would  not  be  ad- 
missible for  the  purpose  of  showing  the  professional  reputatiou  of  the  plaintiff, 
as  reputation  can  only  be  proved  by  the  direct  testimony  of  those  who  are  ac- 
quainted with  it,  and  not  by  particular  facts.     (Id.) 

2049  Sayre  v.  Sayre,  1  Dutcher,  235  ;  Lamos  v.  Snell,  6  N.  Hamp.  413  ;  Sawyer 
v.  Eifert,  2  N.  &  M.  511;  see,  however,  Wright  v.  Schroeder,  2  Curtis,  C.  C.  548. 
The  inquiry  should  be  confined  to  the  plaintiff's  general  character  for  integrity 
and  moral  worth,  or  to  conduct  similar  in  character  to  that  with  which  he  was 
charged  by  the  defendant.     {Leonard  v.  Allen,  11  Cush.  241.)   . 

2060  Steinmari  v.  Mc  Williams,  6  Barr,  170.  In  an  action  for  charging  the 
plaintiff  with  perjury,  the  plaintiff  proved  the  speaking  of  the  words  charged, 
and  then  asked  the  witness  what  was  the  plaintiff  's  general  character  when  on 
oath  and  when  not  on  oath,  as  a  man  of  truth.  The  witness  answered  the  question 
favorably  to  the  plaintiff.  The  defendant's  counsel  then,  in  cross-examining  the 
witness,  asked  him  what  was  the  plaintiff's  general  moral  character,  and  the 
plaintiff  objected  to  the  question.  Held,  that  the  question  ought  to  be  answered, 
because  it  was  on  cross-examination,  and  because  the  answer  might  furnish  evi- 
dence in  mitigation  of  damages.     (Lincoln  v.  Chrisman,  10  Leigh,  33S.) 

2051  Cole  v.  Perry,  8  Cow.  214. 


PLAINTIFFS   REPUTATION.  495 

ment,  and  said  he  was  a  created  being,  a  good  man  and  per- 
fect, his  death  that  of  a  martyr,  but  that  there  was  no  more 
virtue  in  his  blood  than  that  of  any  creature,  was  not  admis- 
sible, either  in  justification  or  mitigation.2052  In  an  action  of 
slander  for  having  called  the  plaintiff  a  thief,  and  saying  that 
"  he  had  stolen  his  [defendant's]  spar,"  the  defendant,  in  miti- 
gation of  damages,  offered  in  evidence  the  record  of  a  verdict 
and  judgment  in  his  favor  against  A.,  for  having  taken  malic- 
iously, and  converted  to  his  own  use,  the  spar  in  question,  it 
was  held  that  such  evidence  was  inadmissible.2053  And  where 
the  charge  was  that  the  plaintiff  was  a  thief,  and  had  stolen 
the  defendant's  corn,  and  the  defendant  justified,  held  that 
evidence  that  the  parties  were  tenants  in  common  of  some 
corn,  and  that  the  defendant  had  taken  secretly,  unfairly,  and 
dishonestly,  more  than  his  share,  was  not  admissible  either  in 
justification  or  mitigation.  Mistake,  to  mitigate,  must  be  mis- 
take of  facts  and  not  of  law.2054 

§  408.  The  rule  in  relation  to  proof  of  the  character  of  the 
plaintiff  is,  that  the  inquiry  must  be  made  as  to  his  general  rep- 
utation where  he  is  best  known,  and  the  witness  ought  ordi- 
narily to  come  from  his  neighborhood.  But  what  the  extent 
of  such  neighborhood  is,  and  what  credit  is  to  be  given  to  wit- 
nesses near  and  remote,  are  questions  for  the  jury  in  determining 
the  general  character  of  the  person  in  question.2055  One  who  went 
to  the  place  of  the  plaintiff 's  former  residence  to  learn  her  char- 

2052  Skinner  v.  Giant,  12  Verm.  456. 

2053  Watson  v.  Churchill,  5  Day,  256. 

2054  Binbey  v.  Shaw,  15  Barb.  578. 

joes  powers  v.  Presgroves,  38  Miss.  227.  The  reputation  of  the  plaintiff, 
among  the  minority  of  his  neighbors,  is  inadmissible.  (Id. ;  and  see  Swift  v. 
Dickerman,  31  Conn.  285.)  In  an  action  for  accusing  the  plaintiff  of  unchaste- 
ness,  where  a  witness  deposes  that  the  plaintiff  'e  character  for  chastity  is  bad, 
it  is  not  necessary  that  the  witness  should  first  have  been  asked  whether  he 
knows  the  plaintiff's  general  character  for  chastity.  (Senter  v.  Carr,  15  N. 
Ilamp.  351.)  A  witness  who  has  stated  that  the  plaintiff's  character  for  moral 
worth  is  bad,  may  be  asked,  on  cross-examination,  what  immorality  is  imputed 
to  him.     (Leonard  v.  Allen,  11  Cush.  241.) 


496  EVIDENCE  FOR  DEFENDANT. 

acter  while  there,  is  not  competent  to  prove  it ;  nor  if  plaintiff 
kept  boarders  at  the  time  of  the  slander,  is  evidence  of  their  opin- 
ion admissible ;  nor  can  one  testify  who  knows  nothing  about 
the  plaintiff's  reputation  but  what  he  heard  from  witnesses  at  a 
prior  circuit.2056  A  jury,  in  estimating  character,  are  to  take 
the  testimony  of  witnesses  who  are  supposed  to  be  able  or  cap- 
able of  reflecting,  in  general  terms,  the  judgment  of  the  pub- 
lic.2057 Proof  of  the  bad  reputation  of  the  plaintiff,  although 
of  a  kind  that  could  not  have  been  caused  by  the  slander,  must 
be  of  his  reputation  prior  to  or  at  the  time  of  the  publication 
complained  of.2058  His  bad  reputation  subsequent  to  the  pub- 
lication complained  of,  may  have  been  the  effect  of  such  publi- 
cation. 

§  409.  The  defence  of  truth  must  be  specially  pleaded. 
The  defendant  cannot,  under  the  general  issue,  prove  the  truth 
of  the  publication  complained  of.2059  But  if  the  plaintiff  give 
in  evidence  parts  of  the  publication  not  set  forth  in  the  declar- 
ation, the  defendant  may,  under  the  general  issue,  justify  such 
parts.2060  The  proof  of  the  repetition  by  the  defendant  of  the 
words  complained  of,  after  the  commencement  of  the  action,  will 
not  confer  upon  the  defendant  the  right  under  the  general  issue 
to  give  evidence  of  the  truth  of  the  matter  published.2061  And 
under  the  general  issue  the  defendant  cannot,  even  in  mitigation, 
give  evidence  of  any  facts  which  conduce  to  prove  the  truth,  or 
which  form  a  link  of  evidence  to  that  end.2062     The  rule  was 

2066  Douglass  v.  Tousey,  2  Wend.  352. 

3057  Luther  v.  Skeen,  8  Jones'  Law  (N.  C),  356. 

joss  ])0Uglass  v.  Tousey,  2  Wend.  352.  Where  the  charge  was  of  general  un- 
chastity,  it  was  held  that  under  the  general  issue  the  general  bad  reputation  of 
the  plaintiff  might  be  shown  in  mitigation.  (Conroe  v.  Conroe,  47  Penn.  St.  R. 
198.) 

2069  Beardsley  v.  Bridgeman,  17  Iowa,  290.     See  §  251,  ante. 

2060  Henry  v.  Norwood,  4  Watts,  347;  and  see  Woodburn  y.  Miller,  Cheves, 
194;  Burke  v.  Miller,  6  Blackf.  155;  Stow  v.  Converse,  4  Conn.  18;  Wagner  v. 
Holbrunner,  7  Gill,  296. 

2061  Teagle  v.  Deboy,  8  Black.  134. 

8062  Purple  v.  Horton,  13  Wend.  9;    Scott  V.  McKinnish,   15  Ala.  662;   Teagle 


PROOF   OF   TRUTH.  41)7 

p-hat  evidence  in  mitigation  must  be  such  as  admitted  the 
charge  to  be  false.2063  And  if  a  defendant  failed  to  establish  a 
plea  of  justification,  he  was  not  entitled  to  any  benefit  from 
the  evidence  given  in  support  of  such  plea,  and  which  tended 
to  prove  the  truth  of  the  charge.2064  Nor  was  a  defendant  al- 
lowed to  prove  in  mitigation  any  circumstance  which  tended 
to  prove  the  truth  of  the  charge,  although  he  expressly  dis- 
avowed a  justification,  and  admitted  the  falsity  of  the  charge.2065 
But  he  might  prove  in  mitigation  circumstances  which  induced 
him  erroneously  to  make  the  charge  complained  of,  and  therebv 
rebut  malice,  provided  the  evidence  did  not  necessarily  imply 
the  truth  of  the  charge  or  tend  to  prove  it  true.2066  The  Code 
of  New  York  has  so  far  modified  these  rules  as  to  admit  in 
mitigation,  circumstances  which  tend  to  prove  the  truth  of  the 
charge,  and  to  give  a  defendant  [who  has  claimed  the  right 
by  his  answer]  the  benefit  of  evidence  in  support  of  a  plea  or 
answer  of  justification,  when  such  evidence  falls  short  of  proof 
but  nevertheless  tends  to  prove  the  truth  of  the  charge ; 2067  and 
to  admit  in  mitigation  anything  which  occasioned  the  defend- 
ant, at  the  time  of  making  the  publication,  to  believe  it  to  be 
true.2068 

v.  Deboy,  8  Blackf.  134;  Thompson  v.  Bowers,  1  Doug.  321 ;  Swift  v.  Dickerman, 
31  Conn.  285;  Wagstaff  v.  Ashton,  1  Harring.  503  ;  Grant  v.  Hover,  6  Mumf.  13  ; 
Henson  v.  Veatch,  1  Blackf.  369 ;  Mse.y.  Ferris,  Anthon,  23 ;  Gilman  v.  Lowell, 
8  Wend.  573  ;  and  see  Owen  v.  McKean,  14  111.  459 ;  Williams  v.  Miner,  18  Conn. 
464;  McAlister  v.  Sibley,  25  Maine  (12  Shep.),  474.  Particular  facts,  which 
might  form  links  in  the  chain  of  circumstantial  evidence  against  the  plaintiff, 
cannot  be  received  under  the  general  issue  in  mitigation  of  damages.  (  Wor- 
mouth  v.  Cramer,  3  Wend.  395.) 

2063  Cooper  v.  Barber,  24  Wend.  105. 

2064  Fero  v.  Ruscoe,  4  N".  Y.  162. 

2066  Petrie  v.  Rose,  5  Watts  &  Serg.  364  ;  Watson  v.  Moore,  2  Cush,  133  ;  Reg- 
nier  v.  Cabot,  2  Gilman,  34 ;    Vesey  v.  Pike,  3  C.  &  P.  512. 

2066  Minesinger  v.  Kerr,  9  Barr,  312. 

2067  Bush  v.  Prosser,  11  N.  Y.  347 ;  Bisby  v.  Shaw,  12  K  Y.  67. 

2068  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488 ;  Stanley  v.  Webb,  21  Barb.  148. 
As  to  the  rule  that  the  defendant  might  show  in  mitigation  belief  in  the  truth 
not  amounting  to  the  actual  truth,  see  Williams  v.  Miner,  18  Conn.  464;  Stees  v. 
Kemble,  27  Penn.  St.  R.  112;    Hutchinson  v.  Wheeler,   35  Verm.  (6   Shaw)  330; 

32 


498  EVIDENCE   FOR  DEFENDANT 

§  410.  Whether  or  not  the  defendant  may,  in  mitigation  of 
damages,  give  evidence  of  improper  conduct  of  the  plaintiff 
calculated  to  invite  the  language  complained  against,  and  af- 
fording just  ground  to  believe  them  true,  seems  doubtful.  In 
one  case,  for  words  impugning  the  chastity  of  the  plaintiff's 
wife,  the  defendant  was  permitted  to  prove,  in  mitigation  of 
damages,  that  the  plaintiff's  wife  and  an  unmarried  man  had 
lived  together  alone  in  one  house.2069 

§  411.  It  has  been  held  in  some  cases  that  the  defendant 
may,  in  mitigation  of  damages,  prove  that  prior  to  the  publi- 
cation complained  of,  a  general  report  or  suspicion  exist- 
ed that   the   plaintiff     had    committed    the    act    charged.2070 

G-ilman  v.  Lowell,  8  Wend.  573  ;  Byrket  v.  Monohon,  7  Blackf.  83.  Testimony- 
offered  by  the  defendant  to  show  that  the  words  charged  were  spoken  with  ref- 
erence to  a  bill  in  chancery  which  he  supposed  was  sworn  to  by  the  plaintiff,  and 
did  contain  false  allegations,  but  which  he  afterwards  ascertained  was  sworn  to 
by  another,  is  inadmissible  in  mitigation  of  damages.  {Owen  v.  McKean,  14  111. 
459;  but  see  Purple  v.  Horton,  13  Wend.  9;  Van  Derveer  v.  Sutphin,  5  Ohio, 
N.  S.  293.)  For  the  purpose  of  proving  that  the  owner  of  a  building  which  has 
been  set  on  fire  has  reason  to  believe  that  a  particular  person  was  the  incendiary, 
and  used  good  faith  iu  making  statements  charging  him  with  the  crime,  evidence 
that  he  was  informed  of  declarations  and  acts  of  the  suspected  person,  tending 
to  show  his  guilt,  is  competent.     {Lawler  v.  Earle,  5  Allen  (Mass.),  22.) 

8089  Reynolds  v.  Tucker,  6  Ohio,  N.  S.  516  ;  and  see  Bradley  v.  Heath,  12  Pick. 
163 ;  Haywood  v.  Foster,  16  Ohio,  88  ;  Minesinger  v.  Kerr,  9  Barr,  312 ;  Shoulty 
v.  Miller,  1  Carter  (Ind.),  544;  but  such  evidence  was  rejected,  although  the  de- 
fendant also  proposed  to  show  that  at  the  time  the  words  were  uttered  a  public 
investigation  was  going  on,  involving  an  inquiry  into  the  plaintiff's  conduct,  and 
was  a  subject  of  public  remark.  {Knight  v.  Foster,  39  N.  H.  576  ;  and  see  Reg- 
nier  v.  Cabot,  2  Gilman,  34.)  Evidence  of  the  defendant's  suspicions  on  the  sub- 
ject is  inadmissible.     (Henson  v.  Veatch,  1  Blackf.  369.) 

2070  Wetherbee  v.  Marsh,  20  N.  Hamp.  561 ;  Case  v.  Marks,  20  Conn.  248  ; 
Bmdgman  v.  Hopkins,  34  Verm.  (5  Shaw)  532  ;  Van  Derveer  v.  Sutphin,  5  Ohio, 
N.  S.  293;  Young  v.  Slemons,  Wright,  124;  Knobel  v.  Fuller,  Peake  Ad.  Cas. 
139 ;  Cooke  v.  Barkley,  1  Perm.  N.  J.  Rep.  169 ;  Smith  v.  Richardson,  Bull.  N.  P. 
9;  Fuller  v.  Dean,  31  Ala.  654;  Morris  v.  Barker,  4  Harring.  520;  Springsteinv. 
Field,  Anthon,  185;  Foot  v.  Tracy,  1  Johns.  45  ;  Henson  v.  Veatch,  1  Blackf.  369  ; 
Commons  v.  Walters,  1  Port.  323  ;  Fletcher  v.  Burroughs,  10  Iowa  (2  With.),  557; 
and  see  Moyer  v.  Pine,  4  Mich.  409 ;  Bradley  v.  Gibson,  9  Ala.  406 ;  Sheahan  y. 
Collins,  20  111.  325. 


IN  MITIGATION.  499 

The  decisions  to  the  contrary  are  quite  numerous.2071 
What  two  or  three  persons  had  said  in  relation  to  plaintiff's 
character,  was  held  inadmissible.2072  In  case  for  slander,  im- 
puting gross  ill-treatment  by  the  plaintiff  of  a  female  ;  under 
the  plea  not  guilty,  the  evidence  of  the  plaintiff  showing  that 
the  words  were  spoken  in  answer  to  an  inquiry  whether  he  had 
not  imputed,  &c,  and  inquiry  by  the  plaintiff  who  was  the 
author  of  the  slander,  the  defendant  replying  that  he  had  heard 
of  the  imputation,  and  that  the  report  was  current,  and  that 
he  had  reason  to  believe  it  true,  but  refused  to  give  up  the 
reporter,  held  that  the  defendant  might  show,  by  cross-examin- 
ation, that  such  report  had  in  fact  prevailed,  and  was  a  topic 
of  conversation  before  the  uttering  of  the  words  by  the  de- 
fendant.2073 In  an  action  for  a  libel,  the  defendant,  to  support 
a  charge  against  the  plaintiff  of  having  set  up  and  supported 
an  infidel  club,  offered  evidence  that  a  club  to  which  the 
plaintiff  belonged  had  the  general  character  of  an  infidel  club. 
It  was  held  that  such  evidence  was  not  admissible,  either  to 
justify  or  mitigate  the  charge.2074 

§  412.  The  defendant  may,  in  mitigation  of  damages,  show 
the  plaintiff's  standing  and  condition  in  society.2075 


2071  Young  v.  Bennett,  4  Scam.  43 ;  Sanders  v.  Johnson,  6  Blackf.  50 ;  Fisher  v. 
Pattison,  14  Ohio,  418 ;  Scott  v.  M'Kinnish,  15  Ala.  662 ;  Anthony  v.  Stephens,  10 
Mis.  254;  Haskins  v.  Lumsden,  10  Wis.  359;  Beardsley  v.  Bridgman,  17  Iowa, 
290 ;  Alderman  v.  French,  1  Pick.  1 ;  Bowen  v.  Hall,   12  Met.   232 ;    Hancock  v. 

Stephens,  11  Humph.  507  ;  Skinner  v.  Powers,  1  Wend.  451.     In  v.  Moor, 

1  M.  &  S.  284 ;  the  defendant  was  permitted,  on  cross-examination  of  a  witness 
for  the  plaintiff,  to  ask  whether  he  had  not  heard  reports  of  plaintiff  being 
guilty  of  offences  similar  to  the  offence  charged.  See  Taylor  on  Evidence,  315, 
2d  edit.,  where  the  English  authorities  are  collected,  and  are  by  the  author  said 
to  preponderate  in  favor  of  the  reception  of  the  evidence  of  general  suspicion  in 
mitigation.     And  see  Wolmer  v.  Latimer,  1  Jurist,  19. 

2072  Regnier  v.  Cabot,  2  Gilman,  34. 

8073  Richards  v.  Richards,  2  Mo.  &  Rob.  567. 
2074  Slow  v.  Converse,  4  Conn.  17. 

2076  Lamed  v.  Buffington,  3  Mass.  546;  Bodwell  v.  Swan,  3  Pick.  376;  Howe  v. 
Perry,  15  Pick.  506. 


500  EVIDENCE  FOR  DEFENDANT 

§  413.  The  declaration  of  a  defendant,  made  prior  to  the 
publication  complained  of,  may  be  given  in  evidence  to  miti- 
gate the  damages;  as  where  the  defendant  had  employed  a 
printer  to  print  the  libel  complained  of,  it  was  held  that  he 
might,  to  show  the  absence  of  ill-will,  and  to  mitigate  dam- 
ages, prove  that  at  the  time  of  the  employment  he  instructed 
the  printer  to  keep  the  matter  as  private  as  possible.2076  But 
declarations  or  acts  of  a  defendant,  made  subsequently  to  the 
publication  complained  of,  cannot  be  received  in  mitigation.2077 
A  full  and  unqualified  retraction  of  the  libel  complained  of,  is 
admissible  in  mitigation.2078 

§  414.  The  defendant  may  set  up,  in  mitigation  of  dam- 
ages, that  he  made  the  publication  in  a  moment  of  heat  and 
passion,  induced  by  the  immediately  preceding    acts  of  the 

2076  Taylor  v.  Church,  8  N.  Y.  452 ;  and  see  Stalling*  v.  Newman,  26  Ala.  300 ; 
Haganv.  Hendry,  18  Md.  177;  Bond  v.  Douglass,  7  C.  &  P.  629;  Vinersv.  Se- 
rell,  Id.  163;  Inman  v.  Foster,  8  Wend.  602.  It  was  held  proper,  on  the  trial  of 
an  indictment  against  the  editor  of  a  newspaper  for  libel,  to  ask  a  witness  if  at 
the  time  of  the  publication  the  defendant  was  not  absent  and  knew  nothing  of 
the  transaction.     {Commonwealth  v.  Buckingham,  Thacher's  Crim.  Cas.  29.) 

s°77  Scott  v.  McKinnish,  15  Ala.  662 ;  Bradford  v.  Edwards,  32  Ala.  62S.  In 
Teates  v.  Reed,  4  Blackf.  463,  it  was  held  that  defendant's  efforts  to  prevent  the 
circulation  of  the  libel  complained  of,  was  not  receivable  in  mitigation.  The  de- 
fendant cannot,  to  support  his  plea  of  justification,  give  evidence  of  transactions 
or  conversations  between  himself  and  others,  to  which  the  plaintiff  was  not  privy. 
{.Taikins  v.  Cockerham,  1  Iredell,  309 ;  and  see  Barfield  v.  Britt,  2  Jones'  Law  (N. 
C.)  41.) 

2078  Hotchkiss  v.  Oliphant,  2  Hill,  510.  But  hesitation,  lurking  insinuation,  an 
attempted  perversion  of  the  import  of  the  language  of  the  first  libel,  or  a  substi- 
tution of  one  calumny  for  another,  only  aggravate  the  offence;  and  if  the  pub- 
lisher, when  advised  of  his  error,  hesitate  to  correct  it,  the  case  rises  into  a  case 
of  premeditated  wrong,  and  he  becomes  a  fit  subject  for  exemplary  punishment. 
(Id.)  A  subsequent  explanation  and  qualification  of  the  slander  is  not  competent 
evidence  under  a  plea  of  justification.  (Luthan  v.  Berry,  1  Port.  110;  and  see 
Alexander  v.  Harris,  6  Mumf.  465.)  Defendant's  subsequent  assertions  of  the 
truth  of  the  slander  is  not  evidence  of  its  truth.  {Rice  v.  Withers,  9  Wend.  138.) 
As  to  the  effect  of  a  withdrawal,  or  recantation,  see  Lamed  v.  Buffingion,  3  Mass. 
546;  Brown  v.  Brown,  3  Ind.  518;  Alderman  v.  French,  1  Pick.  19;  Kent  v. 
Bonzey,  38  Maine  (3  Heath),  435 ;  Mapes  v.  Weeks,  4  Wend.  663  ;  6  &  7  Vict.  ch. 
96 ;  8  &  9  Vict.  ch.  95.     In  Linney  v.  Matton,  13  Texas,  449,  it  was  held  that  an 


IN  MITIGATION.  501 

plaintiff.2079  The  defendant  may,  therefore,  in  mitigation,  prove 
prior  publications  by  the  plaintiff  of  a  provoking  character.2080 
Acts  or  publications  of  persons  other  than  the  plaintiff  are  not 
receivable  in  mitigation;  as  where  the  plaintiff's  father,  shortly 
before  the  uttering  of  the  slander,  used  irritating  language  to 
the  defendant,  held  that  that  fact  was  inadmissible  in  mitiga- 
tion.2081 "Where,  in  an  action  for  libel,  the  defendant  sought  to 
give  in  evidence  libellous  publications  by  the  plaintiff  of  the 
defendant  in  newspapers  and  periodical  works;  held,  that  to 
make  such  admissible,  it  must  be  shown  that  they  came  to  the 
knowledge  of  the  party  supposed  to  be  provoked  thereby,  and 
that  the  court  could  not  infer  from  the  mere  depositing  news- 


immediate  retraction  of  a  charge  made  orally,  and  in  the  presence  of  all  who 
heard  the  charge,  was  a  defence  to  an  action  founded  on  such  charge.  Where  one 
called  another  a  rogue,  in  the  hearing  of  bystanders,  in  a  moment  of  irritation, 
and  in  reference  to  his  unwillingness  to  settle  a  debt  due  him,  and  no  injury  re- 
sulted from  the  words,  it  was  held  not  actionable.  (Artieta  v.  Artieta,  15  La. 
An.  48.)  In  Alabama,  retraction  before  suit,  is, by  statute,  made  mitigation;  see 
Bradford  v.  Edwards,  32  Ala.  628. 

2078  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488.  A  defendant  who  would  rely 
upon  heat  of  passion  in  mitigation  of  damages,  must  set  forth  the  acts  and  lan- 
guage of  the  plaintiff  which  he  claims  caused  his  passion.  It  is  not  sufficient  to 
allege  simply  that  he  uttered  the  words  in  heat  of  passion  caused  by  plaintiff.  In 
slander,  if  the  words  were  spoken  through  the  heat  of  passion,  or  under  excite- 
ment produced  by  the  immediate  provocation  of  the  plaintiff,  such  excitement  or 
passion  may  be  shown  in  mitigation  of  damages;  and  in  Iowa,  without  alleging 
them  specifically  in  the  answer.  (McClintock  v.  Crick,  4  Iowa,  453);  and  see 
Steever  v.  Beehler,  1  Miles,  146;  Brown  v.  Brooks,  3  Ind.  518;  Lamed  v.  Buffing- 
ton,  3  Mass.  546. 

The  fact  that  the  slanderous  words  were  spoken  in  a  sudden  heat  of  passion, 
or  under  great  provocation,  should  be  considered  by  the  jury  in  mitigation  of 
damages.  (Powers  v.  Presgroves,  38  Miss.  227;  Ranger  v.  Goodrich,  17  Wis.  78; 
Duncan  v.  Brown,  5  B.  Monr.  186;  Traphagen  v.  Carpenter,  1  City  Hall  Reporter, 
55;  Else  v.  Ferris,  Anthon,  23.) 

2080  Thomas  v.  Dunaway,  30  111.  373 ;  Wakley  v.  Johnson,  1  Ry.  &  Mo.  422. 
The  defendant  may,  in  mitigation,  give  evidence  that  the  plaintiff  has  been  in  the 
practice  of  vilifying  him,  and  that  he  was  influenced  to  use  the  language  with 
which  he  is  charged  by  the  abuse  of  the  plaintiff,  and  that  may  be  shown  by  the 
defendant's  declaration.  The  jury  is  to  determine  whether  the  language  which 
the  defendant  used  was  used  because  of  such  provocation  received  from  the  plain- 
tiff.    (Bolelar  v.  Bell,  1  Md.  173.)    But  see  cases  in  note  20S4. 

20tl  Underhill  v.  Taylor,  2  Barb.  348. 


502  EVIDENCE  FOR  DEFENDANT 

papers  in  the  defendant's  name,  as  editor,  at  the  stamp-office, 
under  38  Geo.  III.,  c.  78,  §  17,  that  they  were  published  by,  or 
came  to  the  knowledge  of,  the  defendant.2082 

§  415.  All  the  circumstances  connected  with  the  publication 
complained  of  should  go  to  the  jury;2083  and  therefore,  in  an 
action  for  a  libel,  the  defendant  may  give  in  evidence  a  former 
publication  by  the  plaintiff,  to  which  the  libel  was  an  answer, 
to  explain  the  subject-matter,  occasion,  and  intent  of  the  de- 
fendant's publication,  and  in  mitigation  of  damages.2084  And 
a  previous  publication  by  the  plaintiff,  to  which  the  alleged 
libel  is  an  answer,  is  admissible.  The  judge,  before  admitting 
or  excluding  it,  may  peruse  it,  in  order  to  decide  upon  its  char- 
acter.2085 And  all  papers  referred  to  in  a  libel  may  be  admitted 
for  the  purpose  of  explanation  and  interpretation.2086  A  post- 
script is  admissible.2087  Prefixing  a  previous  publication  as  a 
text  to  the  libel  complained  of,  does  not  per  se  make  such  pre- 
vious publication  admissible  in  evidence.2088 

2062  Watts  v.  Fraser,  2  Nev.  <fcP.  157.  Always,  where  mitigating  circumstances 
are  offered  in  evidence  for  the  purpose  of  repelling  the  presumption  of  malice,  it 
should  be  shown  that  the  defendant  knew  of  them  at  the  time  he  made  the  charge. 
(Swift  v.  Dlckerman,  31  Conn.  285;  Dolevinv.  Wilder,  34  How.  Pra.  Rep.  488; 
Reynolds  v.  Tucker,  6  Ohio,  N.  S.  516.) 

2083  Cook  v.  Barkley,  1  Penn.  169. 

2084  Hotchkiss  v.  Lathrop,  1  Johns.  286.  A  prior  publication  by  plaintiff  not 
admissible  in  justification.  (Id. ;  Southwick  v.  Stevens,  10  Johns.  443.)  Other  libels 
alleged  to  have  been  published  by  the  plaintiff  of  the  defendant,  not  relating  to 
the  same  subject,  are  not  admissible  in  evidence,  either  in  bar  of  the  action  or  in 
mitigation  of  damages,  both  on  the  ground  that  the  plaintiff  had  no  notice  of 
such  defence,  as  well  as  of  the  inconvenience,  by  leading  to  a  multiplicity  of  in- 
quiries. {May  v.  Brown,  3  B.  &  Cr.  113;  4  D.  &  R.  6*70.)  See  Watts  v.  Fraser, 
7  C.  &  P.  369. 

2085  Maynard  v.  Beardsley,  1  Wend.  560 ;  4  Wend.  336. 

2086  Nash  v.  Benedict,  25  Wend.  645 ;  Mullett  v.  Button,  4  Esp.  248. 
2067  Coleman's  Case,  2  City  Hall  Recorder,  49. 

2088  Gould  v.  Weed,  12  Wend.  12.  A  subsequent  publication  cannot  be  given 
in  evidence  to  determine  the  character  of  a  publication,  whether  it  is  libellous  or 
not.  Two  articles,  to  be  so  used,  must  appear  simultaneously  in  the  same  paper 
or  book.     ( Usher  v.  Severance,  2  App.  9.) 


IN  MITIGATION.  503 

§  416.  Controversies  between  the  plaintiff  and  defendant 
prior  to  the  publication  complained  of,  and  having-  no  connec- 
tion with  the  subject-matter  of  the  publication,  cannot  be 
shown  to  mitigate  the  damages.2089  Nor  are  previous  publica- 
tions by  the  plaintiff  concerning  the  defendant  admissible  in 
mitigation,  unless  so  immediately  preceding  the  publication  by 
the  defendant  as  fairly  to  raise  the  presumption  that  the  de- 
fendant made  the  publication  under  the  impulse  of  the  provo- 
cation.2090 The  defendant  may  show,  in  mitigation,  that  he  was 
provoked  to  the  publication  complained  of  by  some  contempo- 
raneous or  nearly  contemporaneous  act  or  declaration  of  the 
plaintiff.  Simply  to  show  provoking  acts  or  declarations  by 
the  plaintiff  prior  to  the  publication  by  the  defendant,  is  not 
sufficient.2091  In  an  action  for  a  libel,  in  which  the  plaintiff  was 
charged  with  being  "  a  degraded  scoundrel,  liar  and  black- 
guard," it  was  held  that  the  defendant  might  be  allowed  to 
prove,  under  the  general  issue,  in  mitigation  of  damages,  that 
the  plaintiff,  shortly  prior  to  the  publication  of  said  libel, 
charged  the  defendant  with  false  swearing  in  a  cause  in  which 
he  was  a  witness.2092  In  an  action  of  slander  against  husband 
and  wife,  for  words  spoken  by  the  wife,  it  is  not  competent  for 
the  defendants  to  prove  that  circumstances  relating  to  the  plain- 
tiff's conduct  were  communicated  to  the  husband  before  the 
slanderous  words  were  uttered.2093 

2089  Lester  v.  Wright,  2  Hill,  320.  In  an  action  of  slander  for  words  actionable 
in  themselves,  claiming  general  damages  only ;  held,  that,  under  the  plea  of  the 
general  issue,  evidence  that,  during  the  six  years  prior  to  the  trial,  inveterate 
feelings  of  hostility  had  existed  between  the  plaintiff  and  defendant,  and  that  the 
plaintiff  bad  taken  every  opportunity  to  irritate  the  defendant,  was  inadmissible. 
(Porter  v.  Henderson,  11  Mich.  20.) 

2090  Maynardv.  Beardsley,  7  Wond.  560;  4  Id.  336;  Goxddv.  Weed,  12  Id.  12; 
Child  v.  Horner,  13  Pick.  503;  Walker  v.  Winn,  8  Mass.  248.  A  question  to  a 
witness,  as  to  the  state  of  feeling  between  the  parties,  must  refer  to  tho  time  of 
the  slanderous  speaking.     (Justice  v.  Kirlin,  17  Ind.  588.) 

2091  Moore  v.  Clay,  24  Ala.  235;  Watts  v.  Fraser,  2  Nev.  &  P.  157;  W.  W.  & 
D.  451;  7  Ad.  &  El.  223;  1  Jurist,  671;  1  M.  &  Rob.  491;  Moore  v.  Oastler,  1  M. 
&  Rob.  45 1 ;  Bourland  v.  Eidson,  8  Gratt.  27. 

2092  Davis  v.  Griffith,  4  Gill.  &  Johns.  342. 

2093  Petrie  v.  Rose,  5  Watts  &  Serg.  364. 


50±  EVIDENCE  FOR  DEFENDANT 

§  417.  The  defendant  cannot,  to  mitigate  damages,  give 
evidence  of  bis  poverty  ; 2094  of  his  apparent  good  humor  at  the 
time  of  speaking  the  words;2095  that  no  one  believed  anything 
he  said  ;2096  that  the  defendant  was  not  the  author  of  the  slan- 
der, and  that  he  named  the  author  at  the  time  of  the  publica- 
tion;2097 that  the  publication  did  not  injure,  or  that  it  benefit- 

2094  Myers  v.  Malcolm,  6  Hill,  292 ;  Palmer  v.  Haskins,  28  Barb.  90 ;  and  see 
cases  cited,  note  1979,  ante. 

2096  Weaver  v.  Hindreck,  30  Mis.  (9  Jones),  502.  Defendant  being  intoxicated 
at  the  time  of  publication,  said  to  be  a  matter  of  mitigation.  (Howell  v.  Howell,  10 
Ired.  84.) 

2096  Howe  v.  Perry,  15  Pick.  506;  contra,  Gates  v.  Meredith,  7  Ind.  440.  An 
imputation  of  theft,  made  in  the  presence  of  one  witness  only,  who  stated  that  he 
did  not  believe  the  charge,  held  no  reason  for  restricting  the  damages  to  a  nom- 
inal amount.  (Markham  v.  Russell,  12  Allen,  573.)  The  fact  that  the  words  were 
spoken  in  the  presence  of  one  witness  only,  was  held  to  be  receivable  in  mitiga- 
tion in  Traphagen  v.  Carpenter,  1  City  Hall  Reporter,  55. 

2097  Treat  v.  Browning,  4  Conn.  408;  contra,  Bennett  v.  Bennett,  6  C.  &  P.  588 ; 
Easterwoodv.  Quinn,  2  Brev.  64.  But  see  ante,  §  210.  Under  some  circum- 
stances, the  defendant  may  prove,  in  mitigation,  that  he  derived  his  information 
from  others.  {Kennedy  v.  Gregory,  1  Binn.  85 ;  Galloway  v.  Courtney,  10  Rich. 
Law,  S.  C.  414  ;  but  see  Thompson  v.  Boioers,  1  Doug.  321 ;  Anthony  v.  Stephens,  1 
Mis.  254.)  And  from  whom  or  how  he  derived  his  information  [Leister  v.  Smith, 
2  Root,  24) ;  as  that  the  charge  was  taken  from  the  journals  of  Congress  (Ro- 
mayne  v.  Duane,  3  Wash.  C.  C.  246) ;  or  copied  from  another  paper.  (Davis  v. 
Cutbush,  1  Fost.  &  Fin.  487.)  That  the  defendant  published  the  libel  on  the  com- 
munication of  a  correspondent,  held  not  admissible  in  mitigation.  ( Talbutt  v. 
Clarke,  2  M.  &  Rob.  312.)  W'here  A.  published  a  libel  taken  from  a  paper  pub- 
lished by  B.,  as  an  extract  from  a  paper  published  by  C,  it  was  held,  in  an  action 
brought  by  C.  against  A.,  that  the  testimony  of  D.  that  he  had  heard  A.,  before 
he  published  the  libel,  ask  E.  whether  he  had  not  seen  it  in  the  paper  of  C,  and 
that  E.  answered  that  "he  had,"  was  inadmissible  in  mitigation  of  damages;  but 
that  E.  himself  should  be  produced,  if  his  declaration  were  proper  evidence. 
(Coleman  v.  Southwick,  9  Johns.  45.)  In  an  action  for  the  publication  of  a  libel, 
the  defendant  asked  a  news  collector,  who  wrote  a  part  of  the  article  complained 
of,  "  What  inquiries  and  examinations  he  made,  and  what  sources  of  information 
he  applied  to,  before  making  the  communication "  which  tended  to  charge  the 
plaintiff  with  dishonesty  and  bad  faith  ?  Held,  that  the  question  was  incom- 
petent, and  that  the  defendant,  as  a  foundation  for  such  question,  could  not  prove 
that  there  was  a  general  anxiety  in  the  community  in  regard  to  the  facts  stated  in 
the  publication.  (Sheckell  v.  Jackson,  10  Cush.  (Mass.)  25.)  And  see  Bond  v. 
Kendall,  36  Verm.  741,  where  it  was  held  that  the  defendant  could  not  show  the 
libel  was  a  letter  to  B.  containing  the  result  of  inquiries  made  concerning  the 
plaintiff  at  request  of  B. 


IN  MITIGATION.  505 

ed  the  plaintiff;2098  or  that  others  had  previously  published  the 
same  words ; 20"  a  declaration  of  the  plaintiff  that  the  publica- 
tion did  him  no  injury;2100  or  that  he  believed  the  defendant 
was  not  the  author  but  only  the  repeater  of  the  slander;2101  that 
plaintiff  was  an  enemy  of  his  [defendant's];2102  that  plaintiff 
is  a  quarrelsome  person;2108  or  a  malicious  person;2104  that 
plaintiff  had  boasted  of  committing  offences  of  a  like  character 
with  that  charged ; 2105  that  plaintiff  was  in  the  habit  of  abusing 
the  defendant ; 2106  that  plaintiff  was  a  common  libeller;2107  that 
plaintiff  has  sometimes  published  slander  of  other  persons  not 
the  defendant ; 2108  or  has  threatened  so  to  do  ; 2109  a  former  re- 
covery ;2110  that  defendant  declared  he  could  prove  the  truth  of 

™*  Calhoun  v.  M' Means,  1  N.  <fc  M.  422;  Rex  v.  Wood/all,  Lofft,  776.  No  man 
shall  set  up  his  own  iniquity  as  a  defence  any  more  than  as  a  cause  of  action. 
(Mansfield,  Ch.  J.,  Montifiore  v.  Montifiore,  W.  Black.  363  ;  see  Stewart  v.  Wilkin- 
son, 7  Law  Times,  81 ;  Fry  v.  Bennett,  28  N.  Y.  328. 

2099  Saunders  v.  Mills,  6  Bing.  213. 

9100  Porter  v.  Henderson,  11  Mich.  20.  In  Quigley  v.  Phila.  &c.  R.  R.  Co.  (21 
How.  U.  S.  Rep.  209),  the  defendants  gave  evidence  of  declarations  by  the  plain- 
tiff that  the  matters  out  of  which  the  libel  arose  had  improved  his  business.  See 
Ostrom  v.  Calkins,  5  Wend.  263 ;  and  ante,  note  1465. 

8101  Evans  v.  Smith,  5  Monr.  363. 

2102  Craig  v.  Catlet,  5  Dana,  325. 

2103  Rosier/  v.  Brooks,  20  111.  115;  M' Alexander  v.  Harris,  6  Mumf.  465. 

2104  Forshee  v.  Abrams,  2  Clarke  (Iowa),  572. 

2105  Pallet  v.  Sargent,  36  N.  Hamp.  496. 

2108  Goodbreadv.  Leadbitter,  1  Dev.  &  Bat.  12;  Wakley  v.  Johnson,  1  Ry.  &  M. 
422;  May  v.  Brown,  3  B.  <fe  Cr.  113;  M Alexander  v.  Harris,  6  Mumf.  465;  con- 
tra, see  Botelar  v.  Bell,  1  Md.  173.  In  a  suit  for  slander,  for  charging  the  plain- 
tiff with  perjury,  the  defendant  cannot  show  that,  upon  a  wholly  different  occa- 
sion, the  plaintiff  called  him  a  liar  and  a  perjured  wretch.  (Porter  v.  Henderson, 
11  Mich.  20.) 

2107  Maynardv.  Beardsley,  7  Wend.  560;  4  Id.  336;   Gould  v.  Weed,  12  Id.  12. 

2108  Forshee  v.  Abrams,  %.  Clarke  (Iowa)  571. 

2109  Cochran  v.  Butterfield,  18  N.  Hamp.  115. 

2110  The  defendant  is  not  allowed  to  give  in  evidence,  in  mitigation  of  dam- 
ages, a  former  recovery  of  damages  against  him,  in  favor  of  the  same  plaintiff,  in 
another  action  for  a  libel,  which  formed  one  of  a  series  of  numbers  published  in. 
the  same  gazette,  and  containing  the  libellous  words  charged  in  the  declaration  in 
the  second  suit.     ( Tillotson  v.  Cheetham,  3  Johns.  56.) 


506  EVIDENCE  FOR  DEFENDANT. 

the  words ; 21U  or  in  an  action  for  slander  of  husband  and  wife, 
that  they  lived  unhappily  together;2112  or  kept  a  disorderly 
house.2113 

2,11  James  v.  Clarke,  1  Iredell,  397. 

2112  Anon.,  1  HiU  (S.  C.)  251. 

2113  Watson  v.  Moore,  2  Cush.  133, 


APPENDIX. 


ADDITIONS  AND   CORRECTIONS. 

Add  to  note  26— 

A  person,  whose  name  was  on  the  register  of  persons  whose  notes  had  been 
protested,  applied  to  the  Court  of  Session,  in  Scotland,  for  an  interim  interdict  to 
prevent,  so  far  as  his  own  name  was  concerned,  the  publication  of  a  copy  of  the 
register.  The  court  decreed  for  the  application.  Held,  by  the  Lords,  reversing 
that  decree,  that  the  interdict  ought  not  to  have  been  granted.  (Fleming  v.  New- 
ton, 1  Ho.  of  Lords'  Cas.  363.)  "  The  king  has  no  authority  to  restrain  the  press." 
(Mansfield,  Ch.  J.,  Stationers'  Co.  v.  Partridge.) 

Page  30,  note  17,  line  3,  for  "  Brougham  "  read  "  Lynd- 
hurst." 


INDEX. 


[The  references  are  to  the  numbers  of  the  sections  (§)  and  notes  (n).] 

ABATEMENT  of  action,  in  what  cases,  §  299,  n.  1512. 

ABORTION,  charge  of  taking  medicines  to  produce,  actionable,  n.  529. 

ABSOLUTE  RIGHT,  no  such  thing  as,  §§  47,  48. 

ABUSE,  not  actionable,  §  178. 

ACCORD  and  satisfaction,  defence  of,  §  251. 

defence  of,  must  be  pleaded,  §  250. 
ACCOUNT  BOOKS,  charge  of  falsifying,  when  actionable,  §  188. 
ACCUSATION,  what  amounts  to  an,  §  144  (mm.). 
ACT,  reputation  may  be  affected  by,  n.  2. 

ACTION,  how  commenced,  within  what  time,  and  in  what  court,  §  267. 
notice  of,  when  required,  n.  1342. 
for  words,  meaning  of,  n.  14. 
lies  for  words,  written,  which  not  actionable  if  only  spoken,  §  18, 

n.  14. 
on  the  case,  origin  of,  §§  53,  55. 
on  the  case  for  words,  gist  of,  §§  55,  56,  57,  59,  n.  43. 

not  encouraged,  n.  160. 
for  joint  publication,  §§  118,  119,  n.  117,  118. 
what  requisite  to  give  a  right  of,  §  131,  n.  132-136;  §  132,  n.  137- 

163. 
who  may  maintain,  n.  132.     See  Parties. 
proceedings  in,  are  privileged,  §  221-228. 
ACTIONABLE  LANGUAGE,  concerning  a  class  of  persons  who  may  sue, 

n.  132. 
what  is,  n.  136-147,  §  146-154. 
when  burden  on  defendant  to  show  it  is  not, 

n.  141. 
concerning  a  person,  what  is,  §  152. 
published  orally,  is  such  as  charges  an  indict- 
able offence  involving  moral  turpitude, 
§  154. 


510  INDEX. 

ACTIONABLE  LANGUAGE— continued. 

may  be  actionable  for  charging  a  statutable 
offence,  although  after  the  publication 
the  statute  creating  the  offence  is 
repealed,  §  168. 

peril  of  punishment  is  not  the  gist  of  action 
for,  §  158. 

for  offence  in  foreign  state,  §  159. 

charging  offence,  afterwards  pardoned,  §  158. 

must  charge  an  offence,  punishable  in  a  tem- 
poral court  of  criminal  jurisdiction, 
§159. 

charging  a  purpose  or  intent  to  do  an  unlaw- 
ful act,  §161. 

imputing  evil  inclinations  or  principles,  §  162. 

denoting  opinion  or  suspicion,  §  163. 

by  interrogation,  §  164. 

by  adjectives,  §  165. 

charging  arson,  §  166.     See  Arson. 

forgery,  §  167.     See  Forgery. 
murder,  §  168.     See  Murder. 
being  a  thief,  §  169.     See  Thief. 
larceny,  §  170.     See  Larceny. 
peijury,   §  171.     See  Perjury. 
a   woman  with   want  of   chastity, 
§  172.    See  Female. 

puolisTied  orally,  instances  of,  §§  178,  174. 

charging  disease,  §  175. 

published  in  writing,  §§  176,  177,  178. 

in  the  past  tense,  §  158,  n.  638. 

concerning  one  in  any  trade  or  office,  §§  179, 
180,  181,  184,  188,  189-194. 

concerning  one  in  trade,  must  be  in  a  lawful 
trade,  §§  182,  183. 

concerning  partners,  §  185. 

charging  disinherison,  §  186. 

of  a  candidate  for  office,  §  187. 

of  a  minister  of  the  Gospel,  §  195. 

of  one  in  office,  §  196. 

by  reason  of  special  damage,  §  197.  See 
Special  Damage. 

belief  in  charge,  §  199. 

repetition  of,  §  202. 

concerning  things,  §  203.  See  Slander  of 
Title. 


INDEX.  511 

ACTRESS,     charge  of  intermarriage  with,  is  actionable,  §  177. 

libel  upon,  §  201. 
ADJECTIVE  WORDS,  may  confer  a  right  of  action,  §  165. 
ADMINISTRATOR,  words  concerning,  §  196. 

See  Executor. 
ADMISSION,  by  defendant,  effect  of,  §  383. 
ADULTERER,  charge  of  being,  not  actionable,  §  174. 
ADULTERY,  what  words  import,  §  144  (a). 

charge  of,  actionable  in  certain  States,  §§  153-173. 
charge  of,  not  actionable,  §  160,  172,  190. 
ADVERTISEMENT  in  newspaper,  when  privileged,  §§  240,  243. 
ADVICE,  when  privileged,  §  241. 
ADVOCATE,  privilege  of,  §  225. 
AFFIDAVIT,  made  in  the  course  of  a  legal  proceeding,  cannot  give  a  right 

of  action  for  libel,  §  222,  n.  1091. 
AGENCY.     See  Commercial  Agency. 
AGENT,  cannot  do  a  wrong  as  such,  n.  50. 

liability  of  principal  for  acts  of,  §  122,  n.  124,  125. 
See  Principal  and  Agent. 
AGGRAVATION  OF  DAMAGES,  by  mode  of  conducting  cause,  §  277. 

evidence  for  the  purpose  of,  §§  387,  et  seq, 
ALABAMA,  to  call  a  woman  whore  is  actionable  in,  n.  516. 
ALDERMAN,  words  concerning,  §  196. 
ALIEN,  action  by,  §  298. 
ALLEGATION,  positive,  what  amounts  to,  §  144  (ii,jj). 

divisible,  what  is,  §  145. 
AMENDMENT,  to  retain  verdict,  §  290. 
of  complaint,  n.  1630. 
when  allowed,  §  372. 
AMBO  DEXTER,  meaning  of,  n.  140. 
AMBIGUOUS  LANGUAGE,  how  construed,  §  140,  n.  160. 
AND  AND  FOR,  distinction  between,  §  144  (b). 
ANGLO-SAXON,  the  term  objected  to,  n.  37. 
ANSWER,  corresponds  to  plea,  §  349. 
effect  of  not  making,  §  274. 
what  amounts  to  a  general  denial,  n.  1740. 
of  justification  must  give  color,  §  352. 
several  defences  in,  §  353. 
of  truth,  requisites  of,  §  355. 
of  mitigating  circumstances,  §  361. 
demurrer  to,  §  362. 

See  Plea,  Mitigating  Circumstances. 
to  inquiry,  when  privileged,  §  241. 
APOLOGY,  defence  of,  §  250. 

withdrawal  of  plea  of,  §  280. 


512  INDEX. 

APOTHECARY.    See  Physician. 

ARBITRATION,  in  actions  of  slander  or  libel,  n.  1374,  §  275. 
ARKANSAS,  what  language  is  actionable  in,  §  153. 
ARRANT  ROGUE,  charge  of  being,  not  actionable,  §  174. 
ARREST  in  action  for  slander  or  libel,  §  267. 

of  judgment,  for  unwarranted  innuendo,  §  143. 

where  damages  given  on  a  bad  count,  §  291. 
for  declaration  not  stating  a  cause  of  action,  n.  1799. 
ARSON,  what  words  import,  §  144  (c)  ;  n.  181,  182. 

charge  of,  is  actionable,  §  166. 
ASSAULT,  charge  of,  not  actionable,  n.  320. 

ASSESSMENT  OF  DAMAGES,  where  there  is  no  plea  or  answer,  §  274. 
ATTACHMENT  cannot  issue  in  actions  for  slander  or  libel,  §  267. 
ATTORNEY,  when  client  not  responsible  for  acts  of,  n.  124. 
words  of,  n.  419,  632,  755,  §§  179,  190,  192. 
who  may  appear  by,  n.  1197. 
See  Barrister,  Counsel. 
AUCTIONEER,  words  concerning,  §  192. 
AUTHOR,  words  concerning,  n.  876. 
rights  and  duties  of,  §  255. 
AVERMENT  in  pleading,  what  it  is,  n.  129. 

when  necessary  to  point  the  language  to  plaintiff, 
n.  132. 


BANK  NOTES,  charge  of  stealing,  n.  350. 

BANKERS,  words  concerning,  §  185,  n.  798. 

BANKRUPT,  charge  of  being,  when  not  actionable,  §§  174,  189,  191. 

commissioner,  words  concerning,  §  196. 
BANKRUPT  ROGUE,  when  actionable,  §  165. 
BANKRUPTCY,  report  of  proceedings  in,  are  privileged,  §  231. 

does  not  discharge  from  damages  in  action  for  slander  or 
libel,  n.  1346. 
BARRATOR  defined,  n.  5. 

See  Common  Barrator. 
BARRISTER,  words  of,  n.  146,  §  193,  n.  861. 
BASTARD,  charge  of  having  had,  not  actionable,  §  172. 

charge  of  having  had,  actionable  with  special  damage,  §  198. 
charge  of  being,  when  actionable,  §§  174,  198. 
BATTERY,  charge  of,  not  actionable,  n.  320. 
BAWD,  charge  of  being  a,  not  actionable,  §§  172,  174. 
BAWDY  HOUSE,  what  equivalent  to  charge  of  keeping,  §  144  (d). 

charge  of  keeping,  involves  moral  turpitude,  §  155. 
charge  of  keeping,  is  actionable,  §  173. 


INDEX.  513 

BEGIN,  right  to,  §  276. 

BELIEF  in  truth  of  charge,  not  necessary,  §  199. 
of  publisher,  when  material,  §  204. 
in  truth  of  charge,  no  defence,  §  216. 
in  truth,  in  mitigation,  §  409. 
BERSOGLISVISUR  or  free  speaking  song,  n.  8. 
BIGAMY,  what  does  not  amount  to  a  charge  of,  §  144  (e). 
charge  of,  is  actionable,  n.  700. 
charge  of,  how  justified,  §  404. 
BILL  of  particulars,  when  ordered,  §  273,  n.  1624. 
BILLS,  file  of,  charge  of  stealing,  n.  473. 
BISHOP,  words  concerning,  n.  889. 

petition  to,  is  privileged,  §  237. 
BLACK-LEG,  meaning  of,  n.  140,  1946,  §  144  (/). 

charge  of  being,  not  actionable,  §  174. 
BLACK-SHEEP,  meaning  of,  n.  140. 

BLACKSMITH,  charge  against,  of  keeping  false  books,  n.  751. 
BLASPHEMY,  charge  of,  is  actionable,  §  177. 
BLOODSUCKER,  charge  of  being,  not  actionable,  §  174. 
BOARD  OF  EXCISE,  memorial  to,  is  privileged,  §  237. 
BOGUS  BABY,  charge  of  producing,  held  actionable,  §  173. 
BOGUS  PEDLAR,  judicial  notice  of  meaning  of,  n.  140. 

charge  of  being,  actionable,  §  173. 
BOLTED,  a  charge  that  plaintiff  bolted  is  not  justified  by  saying  he  quitted, 

n.  1039. 
BOOKS.     See  Account  Books. 
BOOKSELLER,  liability  of,  §  124,  n.  126. 
BRAWLING,  n.  8. 

BREACH  of  the  peace,  words  amounting  to,  actionable  in  Mississippi,  Vir- 
ginia, and  Georgia,  §  153. 

See  Disorderly  Conduct. 
of  trust,  what  amounts  to  a  charge  of,  §  144  (/in), 
charge  of,  not  actionable,  §  160. 
BREAKING  OPEN  LETTERS,  charge  of,  §  144  (fib). 

And  see  Broken  Up,  n.  259. 
charge  of,  involves  moral  turpitude,  §  155  ; 

contra,  see  n.  354,  708. 
charge  of,  is  actionable,  §  173. 
BREWER,  words  concerning,  n.  143,  760,  815,  §  212. 
BRIBERY,  charge  of,  is  actionable,  §  173,  n.  759. 
BRIBING  JUSTICE,  actionable,  §  189. 
BRIBING  KNAVE,  actionable,  n.  429. 
BROKEN  UP.     See  Breaking  Open. 
BUGGERING  ROGUE,  actionable,  n.  165. 
33 


514  INDEX. 

BUGGERY,  charge  of,  n.  137. 

See  Unnatural  Offence. 

BURNING.     See  Arson. 

BUSINESS,  meaning  of  the  term,  n.  712.     See  Trade. 

BUTCHER,  words  concerning,  §  192,  n.  954. 

CALUMNY,   meaning  of,  n.  1088. 
CANADA,  charge  of  stealing  in,  n.  351. 

CANDIDATE  for  office  or  employment,  words  concerning,  §  187-247. 
CARPENTER,  words  concerning,  n.  796,  797. 
CATTLE,  marks  on,  altering,  involves  moral  turpitude,  §  155. 

is  actionable,  §  173. 
charge  of  mismarking,  not  actionable,  §  160. 
CAUSES  of  action,  joinder  of,  §  3 ±7. 
CAUTION  not  to  trust  another,  when  privileged,  §  241  (p.  319). 

not  to  marry,  §  241. 
CERTAINTY,  how  it  may  be  ensured,  §  22. 
excessive,  n.  162. 

in  statement  of  words  published,  §  333. 
innuendo  to  ensure,  §  335. 
CHAMPERTOR,  actionable,  §  173. 
CHARACTER,  meaning  of  the  term,  n.  20. 
to  servant,  right  to  give,  §  245. 

See  Master  and  Servant. 

CHASTE  CHARACTER,  meaning  of  the  term,  n  20. 
CHASTITY,  charge  of  want  of,  not  actionable,  §  172. 

actionable,  if  in  writing,  §  177. 
CHEAT,  charge  of  being,  not  actionable,  §  174. 

what  is  not  a  justification  of  a  charge  of  being,  n.  1338. 
CHEATING,  charge  of,  not  actionable,  §  160. 

at  cards,  charge  of,  is  actionable,  n,  680. 
in  trade,  when  actionable,  §  192. 
CHRISTIANITY,  introduction  of,  into  England,  §  56. 

part  of  the  common  law,  §  56. 
CHURCH  DISCIPLINE,  proceedings  in  course  of,  are  privileged,  §  233. 
CHURCHWARDEN,  language  concerning,  n.  143,  §  196. 
CLASS  of  persons,  language  concerning,  when  actionable,  n.  132. 
CLERGYMAN.     See  Minister  of  the  Gospel. 
CLIPPER  and  coiner,  meaning  of  the  terms,  n.  166,  §  144  (g). 
COACH  BUILDER,  words  of,  §  190. 
COLLOQUIUM,  what  it  is,  n.  129,  §  323. 
when  necessary,  n.  163. 
sometimes  used  as  synonymous  with  inducement,  §  323. 


INDEX.  515 

COMMENT,  right  of,  n.  956.     See  Criticism. 

COMMERCIAL  AGENCY,  publications  by,  how  far  privileged,  §  243. 

COMMISSIONER,  words  concerning,  §  196. 

of  bankruptcy,  publication  of  proceedings  before,  §  231. 
report  of,  not  privileged,  n.  1159. 
COMMON  BARRATOR,  not  actionable,  n.  323. 
actionable,  §§  173,  192. 
COMMON  FILCHER,  charge  of  being,  not  actionable,  §  174. 
COMMON  SENSE  in  construing  language,  n.  139. 
COMPANION  of  cut-throats,  not  actionable,  §  174. 
COMPLAINT,  corresponds  to  declaration,  §  306. 
general  requisites  of,  §  306. 
inducement,  §  308. 

in  England,  §  309. 
in  New  York,  §310. 
where  there  are  several  counts,  §  312. 
to  be  stated  in  a  traversable  form,  §  312. 
may  be  put  in  issue,  §  313. 
superfluous,  §  313. 
of  plaintiff's  occupation,  §  317. 
in  action  for  charge  of  false  swearing,  §  321. 
should    show   that    complaint   is    concerning   the   plaintiff, 

§§  316,  323. 
colloquium,    sometimes   used   as   synonymous   with  induce- 
ment, §  323. 
must  allege  a  publication,  §  324. 
publication,  how  alleged,  §  325. 
alleging  place  of  publication,  §  326. 
alleging  time  of  publication,  §  327. 
to  allege  absence  of  legal  excuse,  §  828. 
to  set  out  the  language  published,  §  329. 
where  words  published  in  a  foreign  language,  §  330. 
need  not  set  out  obscene  words,  §  331. 
degree  of  certainty  required,  in  setting  forth  the  language 

published,  §  333. 
need  not  set  forth  the  whole  of  the  matter  published,  §  334. 
allegations  of,  must  be  certain,  §  335. 
innuendo,  §  335. 

cannot  perform  office  of  colloquium,  §  336. 
cannot  introduce  new  matter  or  change  meaning, 
*  n.  1650. 

when,  to  allege  special  damage,  §  345. 
what  causes  of  action  may  be  united  in,  §  347. 
supplemental,  when  allowed,  §  348. 
demurrer  to,  §  362. 


516  INDEX. 

CONCEALER  of  felony,  charge  of  being,  is  actionable,  §  173. 
CONDITION  in  life  of  parties,  effect  of,  §  138,  n.  148,  2094,  §§  390,  391, 
412. 
evidence  of,  on  face  of  libel,  §  386. 
CONFIDENCE,  letters  merely  written  in,  not  privileged,  n.  1200. 

law  respects  communications  made  in,  n.  1209,  1220,  1232, 
§  241  (p.  321). 
CONGRESS.     See  Legislative  Proceedings. 
CONJURING  KNAVE,  not  actionable,  §  165. 
CONNECTICUT,  false  swearing  in  ecclesiastical  court  of,  n.  495. 
calling  a  woman  whore  is  actionable  in,  n.  516. 
CONSOLIDATING  actions  for  slander  or  libel,  n.  1349,  1498,  1517. 
CONSPIRACY,  what  does  not  amount  to  a  charge  of,  §  144  (A). 
CONSTABLE,  words  concerning,  §§  189,  196. 

words  spoken,  on  giving  in  charge  of,  are  privileged,  n.  1091, 
1183. 

See  Police  Officer. 
CONSTRUCTION  of  language,  §§  125-145. 

when  not  allowed,  n.  129. 
in  popular  sense,  n.  134. 
when  ironical,  n.  137. 
how  affected  by  bad  grammar,  n.  139. 
by  judicial  notice,  n.  140. 
explanatory  circumstances,  effect  on,  n.  141. 
effect  of  time  on,  n.  142. 
to  be  consistent  with  the  whole  of  the  mat- 
ter published,  §  137. 
how  affected  by  the  condition  in  life  of  the 

person  spoken  of,  §§  138,  181. 
after  verdict,  §  143,  n.  160,  166,  169,  170. 
See  Meaning. 
CONTEMPT,  in  publishing  proceedings  of  a  court  of  justice,  n.  1154. 
CONTRIBUTION,  none  between  wrong-doers,  §  305. 
CONVICT,  actionable,  §  158. 

See  Returned  Convict. 
CONVICTED  FELON,  meaning  of  the  term,  §  144  (i). 

report  of  speech  of,  not  privileged,  §  231. 
COOPER,  words  concerning,  n.  763. 
CORN-FACTOR,  words  concerning,  §  192. 
CORN-STEALER,  charge  of  being,  is  actionable,  §  173. 
CORONER,  not  liable  for  slander  or  libel,  §  227. 

criminal  information  granted  for  publishing  minutes  of  inquest 
before,  n.  1154,  1059. 
CORPORATIONS  are  legal  persons,  §  261. 


INDEX.  517 

CORPORATIONS— continued. 

their  rights  and  duties  assimilated  to  natural  persons,  §261. 
can  act  only  through  agents,  §  261. 
may  be  sued  for  acts  of  agents,  §  261. 
may  have  a  reputation,  §  262. 
language  concerning,  §  263. 
action  by,  for  libel,  §  264. 
cannot  be  guilty  of  slander,  §  265. 
may  be  guilty  of  libel,  §  265. 
See  Fike  Company. 
COSTS,  plaintiff  may  be  taken  in  execution  for,  §  267. 
security  for,  §  267. 
what  to  be  recovered,  §  267. 
when  action  referred,  n.  1374. 
not  allowed  as  damages,  n.  1455. 
effect  of  amount  of  verdict  upon,  §  296. 
COUNSEL,  privilege  of,  §  225. 

attorney  acting  as,  his  privilege,  n.  1104. 
opening  and  summing  up  of,  on  trial,  §  277. 
when  he  may  refuse  to  testify,  n.  1911. 
See  Attorney. 
COUNTERFEITER,  what  amounts  to  a  charge  of  being  a,  §  144  (J  j). 

charge  of  being,  is  actionable,  §§  173,  177. 
COUNTERFEITING,  charge  of,  involves  moral  turpitude,  §  155. 
COUNTERFEIT  MONEY,  charge  of  being  a  dealer  in,  is  actionable,  §  173. 
COUNTY  COURTS  of  England,  no  jurisdiction  of  actions  for  slander  or 

libel,  n.  1343. 
COURT  and  jury,  province  of,  §§  281  to  289,  384. 
COURT  OF  JUSTICE,  to  be  held  with  open  doors,  §  229. 
COURT  MARTIAL,  report  of  decision  of,  is  privileged,  J  227. 
COWARD,  charge  of  being,  when  actionable  in  Tennessee,  §  153. 
COZENER,  judicial  notice  of  meaning  of,  n.  140. 

charge  of  being,  not  actionable,  §  174. 
CREDIT,  imputing  want  of,  when  actionable,  §  191. 
CRIME  against  nature.     See  Unnatural  Offence. 
and  tort,  difference  between,  n.  Ill,  §  45. 
CRITICISM,  right  of,  n.  980,  §§  253,  254-260. 

See  Comment. 
CRUELTY,  language  may  amount  to,  n.  2. 
CUCKOLD,  charge  of  being,  is  actionable,  §  177. 
CUCKOLDY  ROGUE,  actionable,  §  105. 
CUSTOMERS,  loss  of,  is  special  damage,  §  198. 

how  to  be  alleged  in  complaint,  §  345. 
evidence  of,  §  346. 


518  INDEX. 

DAFFA-DOWN-DILLY,  meaning  of,  n.  140. 
DAMAGES,  power  of  court  over,  §  56,  n.  36. 

correspond  to  Anglo-Saxon  were,  n.  34. 

what  are,  §§  61,  146. 

circumstances  to  mitigate,  §  361. 

when  plaintiff  to  elect  de  melioribus,  §  119. 

particular  and  general,  distinction  between,  n.  954. 

after  recovery  of  judgment,  n.  1289. 

how  assessed,  on  judgment  for  want  of  plea,  §  274. 

aggravation  of,  §§  387,  et  seq. 

aggravation  of,  by  conduct  of  cause,  §  277. 

mitigation  of,  §§  406,  et  seq. 

jury  to  fix  amount  of,  §  289. 

costs  not  to  be  allowed  as,  §  289. 

cannot  exceed  the  amount  claimed,  §  290. 

nominal,  when  proper,  n.  2042,  §  289. 

vindictive,  when  allowed,  §  290. 
See  Special  Damage. 
DAMNED  ROGUE,  charge  of  being,  not  actionable,  §  174. 
DANGER  of  punishment,  not  the  gist  of  an  action  for  slander  or  libel,  §  158. 
DEAD  BODY,  charge  of  stealing  from,  n.  465. 
DEATH,  charge  of  being  the  cause  of,  does  not  amount  to  murder,  §  144  (s). 

of  party  to  action,  effect  of,  §  299. 
DEBATE,  freedom  of     See  Legislative  Proceedings. 
DEBAUCHEE,  charge  of  being,  is  actionable,  n.  666. 
DECLARATION.     See  Complaint. 
DEFAMED,  meaning  of,  §  5,  n.  6. 
DEFAMER,  who  is,  §  5. 
DEFAMATION,  what  it  is,  §  10. 

jurisdiction  of  ecclesiastical  courts  in  matter  of,  n.  39. 
jurisdiction  of  ecclesiastical  courts  in  matter  of,  abolished, 

n.  39. 
evidence,  §  386. 
DEFAMATORY,  language  must  be,  to  constitute  slander  or  libel,  §  71. 
DEFAULT  of  plea  or  answer,  effect  of,  §  274. 
DEFENCE,  distinction  between  legal  excuse  and,  §  65. 

of  privileged  communication,  §§  208,  209. 

of  repetition,  §  210. 

of  truth,  §§  211  to  216,  409. 

of  legislative  proceedings  and  report  thereof,  §  217. 

judicial  proceedings,  §§  220,  222. 

parties  to  proceedings,  §§  221,  224. 

that  language  published  by  one  as  counsel,  §§  224,  225. 

as  witness,  §  223. 


INDEX.  519 

DEFENCE— continued. 

that  language  published  by  one  as  a  judge,  §  227. 

report  of  judicial  proceedings,  §  229. 

of  quasi  judicial  proceedings,  §  231. 

that  publication  made  in  the  course  of  church  discipline,  §  233. 

that  publication  made  at  a  public  meeting,  §  235. 

that  publication  made  in  seeking  redress  other  than  judicially^ 

§  237. 
that  publication  made  in  giving  advice  or  information  generally, 

§  238. 
giving  a  character  to  a  servant,  §  245. 

that  publication  concerning  a   candidate  for  office  or  employ- 
ment, §  247. 
insanity,  §  248. 
drunkenness,  §  249. 
infancy,  §  250. 

accord  and  satisfaction,  §  250. 
previous  recovery,  §  251. 
apology,  §  250. 

publication  in  newspaper,  §  252. 
criticism,  §  255. 

what  must  be  specially  pleaded,  n.  1024-1031. 
what  may  be  pleaded  together,  §  347. 
in  mitigation,  §  406  et  seq.     See  Mitigation. 
copied  from  another  paper,  n.  1013. 
communication  by  third  person,  n.  1013-1024. 
of  previous  rumors,  n.  1014. 
notice  or  specihcation  of,  §  360. 
evidence  for,  §  403.     See  Answer,  Plea. 
DEFENDANT,  examination  of,  to  prepare  complaint,  §  269. 

may  be  arrested,  §  267. 

interrogatories  to,  §  270. 

inspection  by,  §  272. 

effect  of  death  of,  §  299. 

evidence  of  liability  of,  §  383. 

evidence  for,  §  403. 

wealth  of,  cannot  be  shown  to  aggravate  damages,  §  391. 

poverty  of,  cannot  be  shown  in  mitigation,  §  417. 

cannot  set  up  his  own  iniquity  in  mitigation,  n.  2098. 
DEFINITION  of  writing,  §  1,  n.  3. 
of  effigy,  §  1,  n.  3. 
of  slander,  n.  4,  9,  §  22. 
of  defamed,  n.  6. 


520  INDEX. 

DEFINITION— continued. 

of  blackleg,  n.  1946. 
of  libeller,  n.  5. 
of  satirist,  n.  5. 
of  barrator,  n.  5. 
of  law  of  libel,  §  13. 
none  of  libel,  n,  17,  1087. 
attempted,  of  libel,  §  20,  n.  18,  §  22. 
of  action  for  words,  n.  14. 
difficulty  of,  §§  21,  22,  n.  19,  25. 
DEFRAUDED,  not  actionable,  §  174. 
DELIRIUM  TREMENS,  perhaps  a  defence  to  an  action  of  slander  or  libel, 

n.  1280. 
DEMURRER,  for  improper  joinder  of  parties,  §  302. 
to  complaint,  §  362. 
to  answer,  §  362. 
not  allowed  to  mitigating  circumstances  set  up  in  the  answer, 

§  361. 
Lord  Coke's  advice  in  relation  to,  §  362. 
DETECTED,  meaning  of  the  term,  §  144  («),  n.  680. 
DIRECTOR  of  public  company,  words  concerning,  §  196. 
DISCOVERY,  in  aid  of  action  for  slander  or  libel,  §  270. 
DISHONESTY,  charge  of,  is  actionable,  §§  177,  192. 
DISORDERLY  CONDUCT,  when  words  amount  to,  n.  26. 
DISTILLER,  words  concerning,  n.  792. 
DIVISIBLE  ALLEGATIONS,  what  are,  §  145. 
DOCUMENTS,  inspection  and  production  of,  when  ordered,  §  269. 
DOME  BOOK  of  King  Alfred,  n.  38. 
DROVER,  words  concerning,  §  189,  n.  790. 
DRUGGIST,  words  of,  §  178. 

DRUNKARD,  charge  of  being,  is  actionable,  §  177. 
DRUNKENNESS,  charge  of,  not  actionable,  §  174. 

not  a  defence  to  an  action  for  slander  or  libel,  §  249. 
is  mitigation,  §  249,  n.  2095. 
DUEL,  calling  one  coward  for  refusing  to  fight  is  actionable  in  Tennessee, 

§153. 
DUTY,  the  opposite  of  a  right,  §  34. 
not  a  person  or  a  thing,  §  35. 
object  of,  §  36. 
and  right  reciprocal,  §  37. 
pertains  solely  to  persons,  §  38. 
performance  of,  compulsory,  §  39. 
how  to  be  performed,  §  40. 
in  some  sense  the  result  of  law,  §  41. 
every  act  in  performance  of,  &c,  §  42. 


INDEX.  521 

D  UT  Y — continued. 

different  under  different  laws,  §  44. 

law  prescribes,  §  49. 

impossibility  of  defining,  §  51. 
DYER,  words  concerning,  §  191. 

ECCLESIASTICAL,  courts,  powers  of,  n.  11. 

law,  part  of  English  common  law,  n.  11. 

no  status  in  New  York,  n.  11. 
courts,  establishment  of,  §  56. 

jurisdiction  of,  in  cases  of  defamation,  abolished, 
n.  39. 
EDITOR.     See  Newspaper. 
EFFIGY,  is  language  expressed  in  signs,  §  1. 

meaning  of,  §  1. 
EMBRACERY,  what  amounts  to  a  charge  of,  §  144  (j). 

charge  of,  involves  moral  turpitude,  §  155. 
EMPIRIC,  judicial  notice  of  meaning  of,  n.  140. 
EMPLOYER  and  employee.     See  Master  and  Servant. 
EMPLOYMENT.     See  Condition. 
ENCHANTER,  charge  of  being,  not  actionable,  §  174. 
ETIQUETTE,  charge  of  a  breach  of,  not  actionable,  §  178. 
EVIDENCE    of  intention,  n,  66,  67. 

and  pleading  should  correspond,  §  363. 

of  the  language  published,  §  364. 

for  plaintiff,  §  373. 

of  publication  of  defamatory  matter,  §  373. 

as  to  innuendo,  §  342. 

of  witnesses  as  to  meaning,  §  384. 

of  handwriting,  §  382. 

of  defendant's  liability,  §  383. 

of  inducement,  §  385. 

of  inducement  on  the  face  of  the  libel,  §  386. 

in  aggravation  of  damages,  §  387. 

of  plaintiff's  good  reputation,  §  387. 

of  malice,  §§  388,  390-392. 

falsehood  may  be,  §  389. 
of  plaintiff's  rank  and  condition  in  society  to  aggravate  dam- 
ages, §  390. 
of  defendant's  wealth,  §  391. 
of    current  report  that  defendant  had  made  charge   against 

plaintiff,  §  391. 
of  plaintiff's  distress  of  mind,  §  391. 

of  malice  to  aggravate  damages  or  to  defeat  defence  of  privi- 
lege, §  392. 


522  INDEX. 

EVIDENCE— continued. 

of  other  publications  by  defendant  to  prove  malice,  §§  393-396. 

of  admissions  by  defendant,  §  397. 

of  personal  ill-will,  §  398. 

of  malice  on  the  face  of  the  libel,  §  399. 

of  malice,  from  interposing  a  justification  which  is  not  proved, 
§400. 

by  plaintiff  to  rebut  defendant's  evidence,  §  401. 

for  defendant,  §  402. 

under  general  issue,  §  403. 

to  sustain  a  plea  of  justification,  §§  404,  405. 

of  plaintiff's  reputation  in  mitigation,  §  406. 

of  plaintiff's  general  reputation,  §§  407,  408. 

of  truth  under  general  issue,  §  409. 

of  truth,  or  tending  to  prove  the  truth  of  the  matter  published, 
in  mitigation,  §  409. 

of  acts  of  plaintiff,  inducing  a  belief  of  the  truth  of  the  charge 
complained  of,  §  410. 

of  general  reports  or  suspicion  of  plaintiff's  guilt,  §  410. 

of  plaintiff's  standing  and  condition   in  society  in  mitigation, 
§412. 

of  defendant's  declarations  in  mitigation,  §  413. 

of  heat  and  passion  in  mitigation,  §  414. 

of  prior  publications  of  plaintiff  in  mitigation,  §  415. 

of  controversies  between  plaintiff  and  defendant  in  mitigation 
§416. 

of  defendant's  poverty  not  admissible  in  mitigation,  §  417. 

what  not  receivable  in  mitigation,  §  417. 

of  loss  of  customers,  §  341'.     See  Variance. 
EXCISE.     See  Board  of  Excise. 

EXCOMMUNICATED,  charge  of  having  been,  is  actionable,  §§  173,  177. 
EXECUTOR,  actions  of  slander  or  libel  by,  §  299. 
EXEMPLARY  DAMAGES,  when  allowed,  §  290. 
EX  PARTE  AFFIDAVITS,  publication  of,  not  privileged,  n.  1156. 
EX  PARTE  PROCEEDINGS,  report  of,  how  far  privileged,  §  231. 

FACT  and  opinion,  supposed  distinction  between,  §  259. 
FALLING  SICKNESS,  charge  of  having,  doubtful  if  actionable,  §  175. 
FALSE  HEIR,  charge  of  producing,  held  actionable,  §  173. 
FALSEHOOD,  charge  of,  is  actionable,  §  177. 

FALSE  SWEARING,  charge  of,  actionable  in  Arkansas  and  Illinois,  §  153, 
n.  482. 

not  actionable,  n.  354. 

actionable,  §  171. 

charge  of,  is  actionable  if  in  writing,  §  177.     See  Forsworn. 


INDEX.  523 

FALSITY,  how  far  necessary  to  constitute  libel  or  slander,  §  71,  n.  58. 
must  it  be  alleged,  n.  60,  §  73. 
if  alleged  cannot  be  traversed,  n.  60. 
evidence  of  malice,  n,  1214,  §§  247,  388,  389. 
FARMER,  charge  of  keeping  false  books,  when  actionable,  §  188. 

words  concerning,  n.  791,  796. 
FEELINGS,  law  gives  no  remedy  for  outrage  of,  §§  56,  391. 
FELON,  charge  of  being,  is  actionable,  n.  666. 

See  Convicted  Felon. 
FEMALE,  charge  against,  of  incontinency,  when  actionable,  §§  153, 172,  198. 
charge  of  drunkenness,  actionable,  n.  627. 
See  Hermaphrodite.     Married  Woman.     Woman. 
FEME  SOLE,  charge  against  chastity  of,  when  actionable,  §§  153,  172. 

See  Special  Damage. 
FICTITIOUS  NAMES,  use  of,  to  conceal  defamation,  n.  137. 
FILE  OF  BILLS,  charge  of  stealing,  n.  473. 
FIRE  COMPANY,  unincorporated,  cannot  maintain  an  action  for  libel,  n.  132. 

See    Corporation. 
FLORIDA,  what  language  is  actionable  in,  §  153. 
FOOLS,  tacitly  exempted  out  of  all  law,  §  248. 

FOREIGN  STATE,  charge  of  committing  crime  in,  is  actionable,  §  159. 
FORGERY,  meaning  of  the  term,  §  144  (Is). 

charge  of,  actionable,  §§  167,  173. 
FORMER  RECOVERY,  defence  of,  §  251. 

defence  of,  must  be  specially  pleaded,  §  251. 
in  mitigation,  §  417. 
See  Second  Action. 
FORNICATION,  what  amounts  to  a  charge  of,  §  144,  (I). 

charge  of,  actionable  in  certain  States,  §  153,  n.  521,  571. 
charge  of,  not  actionable,  §  172. 
FORSWORN,  charge  of  being,  not  actionable,  n.  354,  §  171. 
FREEDOM  of  speech,  in  legislative  bodies,  §  217,  n.  1301. 

of  the  press,  §  252. 
FROZEN  SNAKE,  judicial  notice  of  meaning  of,  n.  140,  169. 
FUGITIVE  from  justice,  requisition  for  arrest  of,  is  privileged,  n.  1092. 

GAMBLING  FRACAS,  judicial  notice  of  meaning  of,  n.  140. 

charge  of  being  engaged  in,  not  actionable,  §  178. 
GENERAL  ISSUE,  puts  in  issue,  the  correctness  of  a  translation  of  foreign 
words,  §  330. 
evidence  under,  §§  403,  406. 
GEORGIA,  what  language  is  actionable  in,  §  153. 
GESTURES,  included  in  effigy,  §  1. 


524  INDEX. 

GIST  OF  ACTION  for  slander  and  libel,  §§  55  to  59,  n.  43,  §§  146  to  207,  n. 

663,  946. 
GOLDSMITH,  words  concerning,  §  192. 
GONORRHOEA,  charge  of  having,  is  actionable,  §  175. 
GOOD  BEHAVIOUR,  binding  to,  n.  26. 
GOOD  FAITH,  meaning  of  the  term,  §  204. 
GOODS,  reflections  on,  n.  980.     See  Things. 
GOVERNOR,  report  by,  is  privileged,  §  227. 

communication  to,  is  privileged,  n.  11-0,  §  237. 
GRAND  JURY,  report  of,  is  privileged,  n.  1114. 

presentment  to,  is  privileged,  §  227,  n.  1092. 

report  of  proceedings  before,  not  privileged,  §  231. 
GRAZIER,  words  concerning,  n.  788. 

HANDWRITING,  evidence  of,  §  382. 
HEALER  of  felons,  meaning  of,  n.  140. 
HEAT  and  passion,  in  mitigation,  §  414. 
HEIR.     See  False  Heir. 

presumptive,  words  concerning,  §  186. 
HERETIC,  not  actionable,  n.  597. 

HERMAPHRODITE,  charge  of  being,  not  actionable,  §>  174,  190,  n.  776. 
HIEROGLYPHICS,  defamation  by  means  of,  n.  137. 
HIGHWAYMEN,  charge  of  being,  not  actionable  by  reason  of  context,  n. 

354. 
report  of  speech  of,  not  privileged,  n.  1161. 
HOG  STEALING,  charge  of,  n.  255. 
HOG  THIEF,  charge  of  being,  is  actionable,  §  173. 
HONEST  LAWYER,  actionable,  n.  137. 
HONOR,  injury  to,  n.  21. 
HONORARY  OFFICE,  words  of  one  in,  §  184. 
HORSESTEALER,  justification  of  charge  of  being,  n.  1037. 
HORSE-THIEF,  what  amounts  to  a  charge  of  being,  §  144  (jj). 

charge  of  being,  is  actionable,  §  177. 
HOUSE  of  ill-fame,  meaning  of  the  term,  §  144  (d),  n.  184. 
HUSBAND  and  wife,  publication  by,  §  118,  n.  118. 

may  sue,  after  recovery  by  husband,  §  251. 

as  parties,  §§  300  to  302,  304. 
See  Married  Woman. 
HYPOCRITE,  charge  of  being,  is  actionable,  §  177. 

ICELANDERS,  their  horror  of  libel,  n.  14. 
IDENTITY  of  plaintiff,  how  proved,  n.  132. 
IGNORANCE,  charge  of,  when  actionable,  §§  193,  194. 
ILLEGALITY  of  occupation,  when  a  defence,  §  183. 


INDEX.  525 

ILL-FAME.    See  House  of  Ill-fame. 
ILLINOIS,  what  language  is  actionable  in,  §  153. 

child  under  ten  years  of  age  cannot  be  punished  for  larceny  in, 

n.  354. 
calling  a  woman  whore,  is  actionable  in,  n.  516. 
IMPOSTOR,  charge  of  being,  is  actionable,  n.  861. 
IMPOSTURE,  charge  of  living  by,  not  actionable,  §  160. 
INCEST,  imputation  of,  when  actionable,  §  153,  n.  359. 
charge  of,  not  actionable,  §  160. 
what  is  not  a  justification  of  a  charge  of,  n.  1039. 
INCLINATION,  charge  of,  not  actionable,  §  162. 

INCONTINENCE,  charge  of,  when  actionable,  §§  153,  173,  190,  n.  729. 
INDECENT  exposure  of  person,  charge  of,  involves  moral  turpitude,  §  155. 

charge  of,  is  actionable,  §  1 73. 
INDEMNITY  against,  consequence  of  publishing  a  libel,  not  lawful,  n.  1526  . 

if  an  aggravating  circumstance,  n.  1796. 
INDIANA,  what  language  is  actionable  in,  §  153,  n.  516,  521,  571. 
INDICTMENT,  for  libel,  §  9. 

does  not  lie  for  slander,  n.  9. 
INDUCEMENT,  office  of,  and  when  necessary,  §  308. 
of  ironical  language,  n.  1528. 
to  show  meaning,  not  necessary  in  England,  §  309. 
to  show  application  to  plaintiff  not  necessary  in  New  York, 

§310. 
in  what  part  of  complaint  to  be  inserted,  §  311. 
where  there  are  several  counts,  §  312. 
to  be  stated  in  a  traversable  form,  §  312. 
matter  of,  may  be  put  in  issue,  §  313. 
when  superfluous,  §§  313,  314. 
of  showing  application  to  plaintiff,  §  316. 
of  plaintiff's  occupation,  §§  317,  318. 
too  great  minuteness  in,  to  be  avoided,  §  319. 
of  plaintiff  being  duly  qualified,  §  320. : 
where  the  charge  is  of  false  swearing,  §§  321,  322. 
must  be  proved,  §  385. 
how  proved,  §§  385,  386. 
INFAMOUS  PUNISHMENT,  what  is,  §  157. 
INFANCY,  not  a  defence  to  an  action  for  slander  or  libel,  §  249. 
INFORMATION,  when  privileged,  §  241. 
INJUNCTION  to  restrain  publication  of  libel  not  allowed,  n.  26. 

against  rendition   of  judgment   in  an  action  of  slander  on 
account  of  insanity  of  defendant,  §  248. 
INNKEEPER,  words  concerning,  n.  790,  §  198. 
is  a  trader,  n.  790,  820. 


526  INDEX. 

INNUENDO,  what  it  is,  n.  129,  §  335. 

when  it  cannot  apply  language  to  the  plaintiff,  n.  132,  §§  336, 
343. 

when  not  necessary,  n.  140. 

admitted,  by  not  pleading,  §  274. 

to  point  meaning,  n.  163,  165,  §§  335,  338. 

must  be  justified,  §  215. 

unwarranted  arrest  of,  judgment  for,  §§  143,  337. 

when  it  may  be  rejected,  §§  339,  344. 

effect  of,  after  verdict,  n.  170. 

evidence  to  support,  §  342. 

cannot  extend  meaning  of  words,  §§  175,  337. 

instances  of,  n.  813. 

held  proper,  §  340. 

held  unwarranted,  §  341.         See  Meaning. 
INQUIRY,  answer  to,  when  privileged,  §  241. 
writ  of,  to  assess  damages,  §  274. 
INSANITY,  charge  of,  is  actionable,  §  177. 

is  a  defence  to  an  action  for  slander  or  libel,  §  248. 
INSOLVENCY,  charge  of,  when  actionable,  §  191. 
INSPECTION  of  documents,  when  ordered,  §  269. 
INSULT,  words  amounting  to,  actionable  in  Mississippi,  Virginia  and  Georgia, 

§153. 
INSULTING  FEMALES,  charge  of,  is  actionable,  §  177. 
INTENTION,  presumption  of,  n.  53,  §  68. 

how  judged  of,  n.  67. 

what  is,  §§  78,  79,  83. 
kinds  of,  §§81,  82,  86. 

is  a  fact,  n.  66. 

had,  is  malice,  §  84. 

meaning  of,  §  86,  n.  69. 

evidence  of,  n.  66,  67. 

how  far  necessary  to  constitute  a  wrong,  §§  88,  89,  90,  n.  81 
to  86. 

charge  of,  when  not  actionable,  §  161. 

evidence  of,  n.  65,  67. 
INTERPRETATION.     See  Construction. 
INTERROGATION,  charge  of  offence  by  means  of,  §  164. 
INVOLUNTARY  ACT,  what  is,  §  77,  n.  63. 

IOWA,  calling  a  woman  whore  is  actionable  in,  n.  516;  and  see  n.  521. 
IRELAND,  charge  of  murder  in,  n.  352. 
IRONICAL  WORDS,  n.  127,  137,  138. 


INDEX.  527 

ITCH,  charge  of  having,  not  actionable,  §  175. 

charge  of  having,  is  actionable  of,  in  writing,  §  177. 

JACOBITE,  charge  of  being  a,  when  actionable,  §  161. 
JAIL,  held  to  be  a  public  court,  §  231. 
JEOPARDY.     See  Danger  op  Punishment. 
JEST,  not  a  defence  to  an  action  of  slander  or  libel,  n.  1280. 
JESUITS,  sanctioning  killing,  for  slander,  n.  33. 
JEWELLER,  words  concerning,  §  192. 
JEZEBEL,  judicial  notice  of  meaning  of,  n.  140. 
JOINDER  of  causes  of  action,  §  347. 

of  parties.     See  Parties. 
JOINT  ACTION,  when  maintainable,  §  185. 

JOINT  PUBLICATION  of  oral  language,  cannot  be,  §  118,  n.  117. 
of  written  language,  §  118. 
action  for,  §  119. 
JOINT  STOCK  COMPANY,  action  by,  in  name  of  chairman,  §  264. 
JUDGE,  words  concerning,  §  196, 

not  liable  in  slander  or  libel,  §  227. 
private  letter  to,  not  privileged,  n.  1091. 
JUDGMENT,  arrest  of,  \  143. 

JUDICIAL  NOTICE  of  meanings  of  words,  &c,  n.  140,  143. 
JUDICIAL  PROCEEDINGS,  privilege  of,  §§  221,  227,  22S. 

reports  of,  are  privileged,  §  229. 
to  be  conducted  openly,  §  229. 
JURY  to  decide  questions  of  fact,  §  69,  n.  55. 
power  of  court  over,  §  69,  n.  56. 
to  judge  of  meaning,  §  183,  n.  134,  143. 
question  for,  n.  761. 

to  determine  customary  meaning  of  words,  §  281. 
province  of,  §§  282  to  289. 
JURYMAN,  words  concerning,  n.  920. 
JURY,  trial  by,  origin  of,  n.  35.  See  Trial. 

JUSTICE,  meaning  of,  n.  220. 

words  concerning,  §§  189,  190,  196. 
certificate  by,  is  privileged,  n.  1114. 
JUSTICE  of  the  peace,  no  jurisdiction  of  action  for  slander  or  libel,  §  267. 
JUSTIFICATION,  must  be  as  broad  as  the  charge,  and  must  justify  the  pre- 
cise charge,  §§  211  to  216. 
requisites  of  plea  of,  §  355. 

plea  of,  not  sustained,  when  evidence  of  malice,  §  400. 
how  proved,  §§  404,  et  seq.        See  Defence,  Perjury,  Truth. 

KENTUCKY,  calling  a  woman  whore  is  actionable  in,  n.  516  ;   and  see  n. 
521,  571. 


528  INDEX. 

KEY,  charge  of  stealing,  §  170. 

KIDNAPPING,  charge  of,  is  actionable,  §  177. 

KILL,  KILLED,  KILLING,  meaning  of  the  terms,  §  144  (m). 

KILLING,  charge  of,  actionable,  §  168. 

KNAVE,  import  of  the  term,  §  144  (n),  n.  537. 

charge  of  being,  is  actionable,  §  173,  n.  665,  763. 
KNOWLEDGE  of  plaintiff,  how  it  affects  the  meaning  of  language,  §  141 . 
KNOWN,  import  of  the  term,  §  144  (o). 

LACEMAN,  words  concerning,  n.  795. 

LAMPOONER,  n.  5. 

LANDLORD   and   tenant,   communications   between,    how   far   privileged, 

§  241  (p.  323). 
LAND-MARKS,  charge  of  removal,  involves  moral  turpitude,  §  155. 

charge  of  removing,  is  actionable,  §  173. 
LAND  SURVEYOR,  words  concerning,  §  192. 

LANGUAGE,  formerly  no  action  for,  unless  the  words  if  true  would  endan- 
ger life,  11.  40. 

joint  publication  of,  §§  118,  119. 

construction  of,  §  125. 

ambiguous  or  unambiguous,  §  126. 

kinds  of  ambiguity  of,  §  127,  128. 

ambiguous,  as  to  whether  it  concerns  a  person  or  a  thing,  §  131. 
how  construed,  n.  149,  160. 

may  give  a  right  of  action  when  it  concerns  one  in  trade, 
although  not  actionable  as  applied  to  an  individual  as 
such,  §  132. 

a  means  of  effecting  injury,  §§  1-7. 

oral  or  written,  §  1. 

construction  of,  §  125. 

effect  of,  §  2. 

coarseness  of,  in  former  times,  n.  33. 

is  not  a  trespass,  n.  2. 

when  it  amounts  to  a  breach  of  the  peace,  n.  26. 

can  have  no  effect  until  published,  §  23. 

must  assume  the  form  of  propositions,  §  24. 

must  concern  a  person  or  a  thing,  §§  25,  130. 

effect  of  its  publication  must  be  direct  or  indirect,  or  both,§t26. 

direct  effects  of,  §  27. 

effect  of,  the  same  whether  orator  written,  §  29. 

must  produce  some  effect,  §  30. 

impossible  to  anticipate  albthe  indirect  effects  of,  §  31. 

affects  the  reputation,  §  32. 


INDEX.  529 

LANGUAGE— continued.  . 

actionable  per  se,  and  language  actionable  by  reason  of  special 

damage,  distinction  between,  §  147. 
supposed  origin  of  such  distinction,  §  56. 
effect  of  time  on  meaning  of,  n.  142. 
effect  of  extraneous  circumstances  upon  meaning  of,  §  135. 
ambiguous,  how  construed,  §  140,  n.  160. 
what  is  actionable,  §  146. 
actionable  per  se,   §147. 
jury  to  determine  meaning  of,  §  281. 
to  be  set  forth  in  complaint,  §  329. 
presumed  to  be  false  and  malicious,  §  388. 
evidence  of  facts  alleged,  §  386. 
evidence  of  malice,  §  399. 
LARCENY,  what  will  amount  to  a  charge  of,  §  144  (  p  r),  n.  216,  261. 
in  Illinois,  child  under  ten  years  cannot  be  guilty  of,  n.  354. 
charge  of,  actionable,  §  170.    See  Robbery,  Stealing,  Thief. 
LAW  of  libel,  what  understood  by,  §  13. 

denounced  as  vague,  §  15,  n.  12. 
ecclesiastical,  part  of  English  common  law,  n.  11. 
no  status  in  New  York,  n.  11. 
LAWSUIT,  implies  a  judicial  proceeding,  n.  499. 
LEGAL  EXCUSE,  what  is,  §  64. 

distinction  between,  and  defence,  §  65. 
LEGISLATIVE  PROCEEDINGS  are  privileged,  §  217. 

supposed  to  be  secret,  §  217. 
when  to  be  with  open  doors,  n.  1081. 
publication  of,  how  far  privileged,  §  219. 
LEGISLATOR,  privilege 'of,  §  217. 
LEGISLATURE,  petition  to,  is  privileged,  §  237. 
LEPROSY,  charge  of  having,  is  actionable,  §  175. 
LEPROUS  KNAVE,  actionable,  §  175. 
LETTER  CARRIER,  words  of,  §  182. 
LETTERS,  confidential,  not  privileged,  n,  1200. 

See  Breaking  Open,  Private  Letters. 
LIABILITY,  extent  of,  §§  67,  68,  n.  49,  50. 

of  defendant,  how  proved,  §  382. 
LIAR,  what  imports  a  charge  of  being,  §  144  (q). 
charge  of  being,  not  actionable,  §  174. 
charge  of  being,  actionable  if  in  writing,  §  177. 
charge  of  being,  against  a  merchant's  clerk,  actionable,  §  192. 
LIBEL,  what  it  is,  §§  4,  9,  n.  132,  §  17. 

action  not  maintainable  for  cost  of  printing,  n.  1521. 
remedy  for,  3  9. 
34 


530  INDEX. 

LIBEL — continued.  * 

kinds  of,  n.  16. 
and  slander,  distinction  between,  §  18,  n.  14. 

proposal  to  assimilate,  n.  41. 
no  definition  of,  n.  17. 
attempts  to  define,  §  20,  n.  18,  1087. 
statutory  definitions  of,  §  18. 

uncertain  when  remedy  by  action  for,  was  introduced,  §  55. 
gist  of  action  for,  §§  55,  56,  57,  59,  n.  43. 
consists  of  three  acts,  §  70. 
essential  element  of,  §  70.] 

to  constitute,  language  must  be  defamatory,  §  72,  n.  57. 
must  language  be  false,  g  73. 
must  the  publication  be  malicious,  §  74. 
in  newspaper,  statutory  provisions  as  to,  n.  1304. 
by  corporation,  §  265.    See  Slander  of  Title. 
LIBELLER,  who  is,  §  4,  n.  5. 

and  satirist,,  distinction  between,  n.  o. 
charge  of  being,  is  actionable,  g  177. 
could  not  take  as  devisee,  n.  669. 
LIBERTY  of  the  press,  §  252. 
LICENSE  to  trade,  need  not  be  alleged,  §  183. 

want  of,  must  be  set  up  as  a  defence,  §  183. 
LIEUTENANT-GOVERNOR,  words  concerning,  §196. 

petition  to,  is  privileged,  §  237. 
LIME-BURNER,  words  concerning,  §  192. 
LIVERY-STABLE  KEEPER,  words  of,  n.  714. 
LODGE  of  Odd  Fellows,  charges  preferred  to,  not  privileged,  §  237. 
LOOSE  WOMAN,  charge  of  being  a,  actionable,  £  172. 

MADE  AWAY  WITH,  does  not  impute  larceny,  §  144  (r). 
MADMEN,  tacitly  exempted  out  of  all  law,  §  248. 
MAGISTRATE,  words  concerning,  n.  901.     See  Justice. 
MAINTAINER  of  suits,  not  actionable,  n.  541. 
MALICE,  is  really  bad  intent,  §  84. 

meaning  of,  n.  68,  71-75,  §§  87-89,  90,  92. 

division  of,  into  malice  in  law  and  malice  in  fact,  §  87,  n.  76,  77, 
§241   (p.  317). 

how  far  necessary  to  constitute  a  wrong,  §§  87,  88,   n.  80,  81, 
§§  121,  122. 

necessary  to  a  cause  of  action  concerning  a  thing,  §  205. 

need  not  be  alleged  in  complaint,  §  328. 

falsehood  is  evidence  of,  n.  1214,  §§  247,  389. 

when  evidence  of,  to  be  given,  §  279. 

proof  of,  §§  388,  392,^  seq. 


INDEX.  531 

MALICIOUS  PROSECUTION,  what  it  is,  and  how  it  differs  from  slander 

and  libel,  §  220. 
when  maintainable,  §  237. 
effect  of  recovery  in,  §  251. 
MALICIOUS  TRESPASS,  charge  of  committing,  not  actionable,  §  160. 

See  Trespass. 
MARINE  COURT  of  New  York,  has  jurisdiction  of  actions  for  slander  and 

libel,  §  267. 
MARRIAGE,  loss  of,  is  special  damage,  §§  198,  201. 
MARRIED  WOMAN,  language  concerning,  n.  143. 

charge  of  stealing  goods  of,  when  actionable,  n.  354. 
may  be  held  to  bail,  §  267. 
may  sue  for  slander  or  libel,  §  300. 
cannot  sue  her  husband  for  slander  or  libel,  §  300. 
MARYLAND,  what  language  is  actionable  in,  §  153,  n.  516. 
MATHEMATICAL  SCIENCE,  why  certain,  §  22,  n.  19. 
MAN  FRIDAY,  judicial  notice  of  meaning  of,  n.  140. 
MASTER  and  servant,  effect  of  relation  of,  n.  1231,  1258. 

right  of  master  to  give  character  to  servant,  §§  245, 
246.     See  Servant. 
MAYOR,  words  concerning,  §  196. 

language  by,  is  privileged,  n.  1116. 
MEANING,  the  term,  how  used,  n.  149. 

opinion  of  witness  as  to,  not  allowed,  §  384. 
See  Construction,  Innuendo. 
MEETINGS,  when  reports  of  proceedings  at,  are  privileged,  §  235. 
MEMBER  of  Congress,  words  concerning,  §  196. 

of  Parliament,  words  concerning,  §  196. 

when  he  may  refuse  to  testify  as  a  witness,  n.  1911. 
MEMORIAL.     See  Petition. 

MENTAL  DISTRESS  is  not  special  damage,  §  200. 
MERCHANT,  charge  of  keeping  false  account  books,  §  188. 

words  of,  §§  189,  191,  n.  796,  798,  800. 
MERCHANT'S  CLERK,  words  concerning,  §  192. 
MIDWIFE,  words  concerning,  §  193. 
MILK  PURSE,  judicial  notice  of  meaning  of,  n.  140,  146. 
MILLER,  words  concerning,  n.  143. 

MINISTER  of  the  Gospel,  words  of,  §§  171, 195, 198,  n.  627,  729,  772,  §  259. 
*    not  privileged,  in  communications  with   mem- 
bers of  his  congregation,  §  241,  (pp.  321- 
324.) 
MISCARRIAGE,  charge  of  attempting  to   procure  or  causing,   not  action- 
able, §160. 
MISCHIEF,  everything  in  nature  may  be  instrument  of,  n.  2. 
caused  by  words,  n.  2. 


532  INDEX. 

MISCONDUCT  in  trade,  charge  of,  is  actionable,  §  192. 
MISSISSIPPI,  what  language  is  actionable  in,  §  153,  n.  482. 
MISSOURI,  what  language  is  actionable  in,  §  153,  n.  516,  571. 
MITIGATING  CIRCUMSTANCES,  setting  up,  in  answer,  §  361. 
MITIGATION,  rumors  against  plaintiff's  character,  n.  1013,  1079. 
naming  previous  publisher,  n.  1023,  1024,  1079. 
truth  cannot  be  shown  in,  unless  pleaded,  n.  1031. 
facts  showing  suspicion  of  plaintiff's  guilt,  not  amounting  to 

actual  proof,  n.  1031. 
facts  tending  to  prove  truth,  but  falling  short  of  it,  n.  1031. 
plaintiff's  general  bad  character,  n.  1031. 
copied  from  previous  publication,  n.  1 079. 

with  omissions,  n.  1079. 
drunkenness  may  be  shown  in,  §  248. 
apology  in,  n.  1286,  1287. 
pendency  of  other  actions  in,  n.  1292. 
MITIOEI  SENSU,   construction  in,  §  142,  n.  160,  162,  164. 
MORAL  TURPITUDE,  what  is  meant  by,  §  154. 

what  offences  involve,  §  154,  n.  308. 

when  charge  must  involve,  in  order  to  be  actionable,  §  154. 
MOTIVE  synonymous  with  intent,  §  79,  n.  81. 
MOUNTEBANK,  judicial  notice  of  meaning  of,  7i.  140. 
charge  of  being,  is  actionable,  n.  861. 
MURDER,  charge  of,  when  not  actionable,  §  135,  n.  144. 
what  amounts  to  charge  of,  §  144  (s). 

charge  of  soliciting  to  commit,  involves  moral  turpitude,  §  155. 
charge  of,  n.  352. 
MURDERER,  charge  of  being  a,  actionable,  §  168. 

charge  of  being,  not  actionable  by  reason  of  context,  n.  354,  441. 
report  of  speech  of,  not  privileged,  §  231. 
MURDERING  ROGUE,  actionable,  §  165. 
MURDEROUS  QUEAN,  not  actionable,  n.  409. 
MURDEROUS  VILLAIN,  not  actionable,  §  165. 

NATURAL  RIGHT,  no  such  thing  as,  §§  41,  47. 
NEW  HAMPSHIRE,  charge  of  fornication  actionable  in,  n.  571. 
NEW  JERSEY,  charge  of  fornication  actionable  in,  n.  521. 
NEWSPAPER,  receiver  to  conduct,  liability  of,  n.  125. 

proprietor,  liability  of,  §  123,  n.  122,  125,  §  252. 
words  concerning,  n.  980. 

in  New  York,  privilege  of,  §  219,  n.  1086,  1112. 
editor,  liability  of,  n.  125. 

rights  of,  n.  956,  1087,  1122,  1312,  §§  252,  254. 
reporter,  rights  of,  n.  1122,  1154. 
when  it  may  be  read  in  evidence,  §  382. 


INDEX.  533 

NEWSPAPER— continued. 

advertisement  in,  when  privileged,  §§  240,  243. 

law  does  not  take  judicial  cognizance  of,  §  252. 

statutory  provisions  relating  to  libels  in,  n.  1304. 
NEW  TRIAL,  before  what  judge,  §  275. 

for  excessive  damages,  §  293. 

for  insufficient  damages.  §  291. 

because  verdict  for  defendant,   instead  of  for  plaintiff,  with 
nominal  damages,  §  294. 

because  verdict  against  weight  of  evidence,  §  295. 
NEW  YORK  CITY,  when  language  in,  amounts  to  a  breach  of  the  peace,  n.  26. 
NOMINAL  DAMAGES,  when  proper,  §  289,  n.  2042. 

new  trial  not  granted  because  verdict  should  have 
been  for,  §  294.     See  Damages. 
NORTH  CAROLINA,  what  language  is  actionable  in,  §  153,  n.  516,  521. 
NUMBER,  allegations  of,  are  divisible,  §  145. 

OBLIGATION,  duty  is,  §  35. 
OCCASION  upon  which  an  act  is  enacted,  §  50. 
OCCUPATION.     See  Trade. 

of  plaintiff,  how  proved,  §  386. 
OFFICE.     See  Candidate,  Trade. 

words  concerning  one  in,  §§  188,  196. 
of  profit  and  of  honor,  distinction  between,  n,  748. 
words  concerning  candidate  for,  §  247. 
OHIO,  calling  a  woman  whore  is  actionable  in,  n.  516,  and  see  n.  521,  623. 
OPINION,  words  denoting,  not  actionable,  §  162. 

of  witnesses,  when  receivable,  n.  132,  §  384. 
when  privileged,  §§  241,  258,  p.  316. 
and  facty  supposed  distinction  between,  §  259,  n.  368. 
ORIGINAL  WRITS  abolished,  n.  27. 
OUTLAW,  action  by,  §  298. 
OVERSEER,  words  of,  n.  464,  §  196. 

PACKING  A  JURY,  charge  of,  §  144  (t). 

PAPIST,  not  actionable,  n.  597. 

PARDON,  effect  of,  on  right  of  action,  §  158. 

PARENT,  not  liable  for  acts  of  children,  n.  124. 

PARLIAMENT,  proceedings  of,  in  theory,  conducted  with  closed  doors,  §  217. 

petition  to,  is  privileged,  §  237.     See  Legislative  Proceedings. 
PARTICULARS.     See  Bill  of  Particulars. 
PARTIES  to  action,  for  joint  publication,  §§  118,  119,  n.  117,  118. 

privilege  of,  §  224. 

may  appear  by  attorney,  n.  1097. 

generally,  §§  297  to  305. 


534  INDEX. 

PARTY  plaintiff,  who  may  be,  n.  132. 
PARTNERS,  actions  against,  §  119. 
charge  against,  §  169 
words  concerning,  §  185. 
parties  to  actions,  by  and  against,  §  303. 
PASSING  counterfeit  money,  charge  of,  not  actionable,  §  174. 
PASTOR.     See  Minister  of  the  Gospel. 
PATRONAGE,  meaning  of,  §  142.  , 

PAWNBROKER,  concerning,  n.  786. 
PAYMENT  into  court,  defence  of,  n.  1304. 

PECUNIARY  LOSS,  the  gist  of  an  action  for  slander  or  libel,  §§  55,  56,  57, 
59,  ]  84. 
is  special  damage,  §  198. 
PEDLAR,  a  rogue  by  statute,  n.  715.    See  Bogus  Pedlar. 
PENCIL  MARK  is  writing,  n.  3. 
PENNSYLVANIA,  false  swearing  in  ecclesiastical  court  of,  n.  495. 

charge  of  fornication  actionable  in,  n.  571. 
PERIL.     See  Danger  of  Punishment. 
PERJURED  KNAVE,  not  actionable,  by  reason  of  the  context,  n.  147,  426, 

477. 
PERJURED  ROGUE,  actionable,  n.  426,  477. 
PERJURY,  what  amounts  to  charge  of,  §  144  («),  n.  166,  169,  223. 
charge  of,  how  justified,  §§  404,  405,  358. 
charge  of  procuring  one  to  commit,  is  actionable,  §  161. 
charge  of,  actionable,  §  171. 
PETITION  to  parliament,  when  privileged,  n.  1082,  §  237. 
for  redress,  when  privileged,  §  237. 
circulating  to  obtain  signatures  is  allowable,  §  239. 
PETTYFOGGING,  charge  of,  against  attorney,  actionable,  n.  852. 
PHYSICIAN,  words  of,  n.  165,  448,  §  183,  190,  193,  n.  856,  859. 

See  Druggist. 
PICKPOCKET,  charge  of  being,  n.  268. 

is  actionable,  §  173. 
PILFERING,  meaning  of  the  term,  §  144  (»). 

charge  of,  when  actionable,  §  169. 
PIMP,  meaning  of,  n.  142. 
PLACE  of  publication,  how  far  material,  §  110,  n.  111. 

of  trial,  §  268. 
PLAINTIFF,  must  be  identified  in  the  alleged  defamatory  matter,  n.  132. 
need  not  be  directly  named,  n.  132,  137,  138,  139. 
if  language  not  applicable  to,  innuendo  cannot  make  it  so,  n. 

132. 
what  language  does  not  sufficiently  point  to,  n.  132. 
what  he  must  show  to  sustain  an  action,  n.  136. 
who  may  be,  §  298. 


ixdex.  535 

PLAINTIFF— contin  ued. 

effect  of  death  of,  §  299. 

evidence  of  good  reputation  of,  to  aggravate  damages,  §  386. 
evidence  of  his  rank  and  condition  to  aggravate  damages,  §  390. 
evidence  of  occupation  of,  §  383. 
distress  of  mind  not  damage  to,  §  391. 
ill-will  of  defendant  towards,  to  aggravate  damages,  §  392. 
evidence  for,  §  373  et  seq.     See  Evidence. 
general  reputation  of,  is  put  in  issue,  §  406. 
inquiry  into  reputation  of,  §  407. 

evidence  of  standing  and  condition  in  society  to  mitigate  dam- 
ages, §  412. 
evidence  of  acts  of,  in  mitigation,  §  414,  et  seq. 
benefits  to,  by  libel,  cannot  be  shown,  n.  2098,  2000. 
PLEA,  formerly  only  one,  allowed,  §  211. 

to  whole  or  part  of  complaint,  §  212. 
effect  of,  not  interposing,  §  274. 
withdrawal  of,  on  trial,  §  280. 
answer  corresponds  to,  §  349. 
that  publication  by  mistake,  n.  1740. 
of  general  issue,  §  350. 
in  bar  must  answer  the  whole  count,  §  351. 
of  truth,  requisite  of,  §  355. 
justifying  a  charge  of  crime,  §  358. 
of  justification  failing  in  part  fails  altogether,  §  359. 
notice  in  lieu  of,  §  360.         See  Answer. 
PLEADING,  how  construed,  n.  161. 

defamatory  matter  in,  will  not  give  a  right  of  action  for  libel. 

§221. 
certainty  in,  §  335. 
formerly  in  Latin,  n.  1595. 

and  proof  to  correspond,  3  363.  See  Answer.     Complaint. 

PLUNDERED,  does  not  mean  a  felonious  taking,   §  144  (w). 

not  actionable,  §  174. 
POCKY  RASCAL,  query  if  actionable,  n.  410. 
POCKY  WHORE,  not  actionable,  §  165. 
POISON,  meaning  of  the  term,  5  144  (x). 

charge  of  administering,  ti.352,  446,  529,  551,  §  168, 173,  190,  193. 
POLICE  OFFICER,  words  concerning,  §  196. 

words  published  to,  n.  1183.      See  Constable. 
POLTROON,  charge  of  being,  when  actionable  in  Tennessee,  §  153. 
PORK  BUTCHER,  words  concerning,  §  190.      See  Butcher. 
POSTMASTER,  words  concerning,  §  196. 

complaint  to,  held  privileged,  n.  1192.' 


536  INDEX. 

POX,  charge  of  having,  is  actionable,  §  175. 
PRECEDENTS,  value  of,  n.  142. 
PRESUMPTION  of  law,  objections  to,  §  68,  n.  54. 

of  identity,  n.  132. 

of  continuance  in  occupation,  §  189. 

PRESS,  freedom  of,  §  252. 

PREVIOUS  RECOVERY.     See  Former  Recovery. 

PRINCIPAL  and  agent,  communications  between,  how  far  privileged,  §  241 

(p.  323). 
PRINTING,  writing  includes,  n.  3. 

PRIVATE  LETTERS,  charge  of  publishing,  is  actionable,  §  177. 
PRIVILEGED  PUBLICATION,  what  is,  §  120,  121,  209. 

defence  of,  §  208. 

divided  into  absolutely  privileged  and  con- 
ditionally privileged,  §  209. 

in  legislative  proceedings,  §§  217  to  219. 

in  judicial  proceedings,  §  220. 

in  a  pleading,  §  221. 

in  an  affidavit,  §  222. 

as  a  witness,  §  223. 

as  a  party  to  an  action,  §  224. 

as  advocate,  §  225. 

in  the  course  of  church  discipline,  §  233. 

at  public  meetings,  §  235. 

on   giving  in  charge  to  police   officer,    n. 
1091,  1183. 

in  seeking  redress,  §  237. 

confidential  letter  is  not,  n.  1200. 

to  protect  person,   property,  or  reputation 
of  publisher,  §  240. 

to  protect  rights  of  others,  §  241. 

giving  advice  or  information,  §  241. 

when  privilege  ceases,  §§  242,  243. 

PRODUCTION  of  documents,  when  ordered,  §  269. 
PROFESSION.     See  Trade. 
PROFITS,  loss  of,  is  special  damage,  §  198. 
PROOF.     See  Evidence. 

PROSPECTIVE  DAMAGES,  not  allowed,  §  290. 
PROSTITUTE,  what  amounts  to  a  charge  of  being  a,  §  144  Q/). 
charge  of  being,  not  actionable,  §  172. 

PROTECTION,  meaning  of,  §  142. 

of  person,   property  or  reputation,   publication  for  the  pur- 
pose of,  are  privileged,  §  240. 


INDEX.  537 

PUBLICATION   of  language  necessary,  before  language  can  have  any  ef- 
fect, §  23. 

is  an  indirect  wrong,  §  45. 

cannot  be  restrained  by  injunction,  n.  26. 

to  be  unlawful  must  be  voluntary,  n.  49. 

the  essential  element  of  slander  or  libel,  §  70,  n.  23. 

meaning  of  the  term,  §  94,  n.  93. 

mode  of  formerly,  n.  93. 

necessity  for,  §  93,  n.  94. 

actionable,  what  is,  §  95,  n.  95. 

to  husband  or  wife  of  party  affected,  §  95,  n.  96. 

understanding  necessary  to,  §  96,  n.  97. 

language  of,  §  97,  n.  98. 

may  be  of  oral  or  written  language,  §  98. 

of  summons,  §  267. 

to  be  alleged  in  complaint,  §  324. 

how  alleged,  §§  324,  325. 

place  of,  how  alleged,  §  326. 

time  of,  how  alleged,  §  327. 

proof  of  time  of,  n.  1903. 

what  amounts  to,  n.  101,  §§  100-108,  116,  n.  114,  116. 

oral,  requisites  of,  §  107. 

in  writing,  requisites  of,  §  108. 

time  of,  §  109,  n.  1903. 

place  of,  §  110,  n.  111. 

joint,  cannot  be  of  oral  language,  §  118,  n.  117. 

by  husband  and  wife,  §  118. 

privileged,  §§  120,  121. 

proof  of,  §  373. 

secondary  evidence  of,  §  378. 
PUBLIC  HOUSE,  not  equivalent  to  bawdy  house,  §  144  (d). 
PUBLIC  TRUST,  charge  of  breach  of,  actionable,  n.  748. 
PUBLISHER,  who  is  a,  §  111. 

in  what  sense  the  term  is  used,  §  111. 
who  liable  as,  §§  114,  115,  n.  113,  §§  120-125. 
extent  of  liability,  §  114,  n.  112,  §  117. 
belief  of,  when  material,  §  204. 

in  mitigation,  §  409.  See  Newspaper. 

PUNISHMENT.     See  Danger  of  Punishment.     Infamous  Punishment. 

QUESTIONS  of  fact,  who  to  decide,  §  69,  n.  55,  56. 

whether  language  is  concerning  a  person  or  a  thing, 
§207. 
QUESTIONS  of  law,  who  to  decide,  ?  69,  n.  55,  56. ' 


538  INDEX. 

RASCAL,  charge  of  being,  not  actionable,  n.  587. 

charge  of  being,  actionable  if  in  writing,  §  177,  n.  666. 
READ,  charge  of  being  unable  to,  meaning  of,  §  144  (11). 
REBEL,  action  by,  §  298. 
REBELLIOUS  KNAVE,  not  actionable,  §  165. 
RECEIVER,  liability  of,  n.  125. 

right  of  action  for  slander  or  libel,  does  not  pass  by  assignment 

to,  5  299. 
of  stolen  goods,  charge  of,  actionable,  §  173,  n.  542. 
RECOVERY,  when  a  bar  to  a  subsequent  action,  §  185. 
REDRESS,  language  published  in  seeking,  is  privileged,  §  237. 
REFEREE,  actions  of  slander  or  libel  may  be  tried  by,  n.  1374. 
REGISTER  of  protests,  publication  of,  is  privileged,  §  231. 
REGRATOR,  charge  of  being  a,  not  actionable,  n.  326. 
RELATIONS,  confidential  communications  between,  §  241,  n.  1232. 
REMEDY  for  libel,  §  9. 

for  slander,  §  8,  n.  9. 
for  defamation,  §§  10,  11,  n.  11,  39. 
law  provides,    §§  52,  43. 
by  action,  §  53. 

for  slander  and  libel,  uncertainty  as  to  introduction  of,  §  55. 
party  taking  in  his  own  hands,  n.  33. 
RENTER  of  tolls,  words  of,  §  182. 
REPEAL  of  statute,  effect  of  on  right  of  action,  §  158. 
REPETITION,  what  is,  §  112. 
effect  of,  §  202. 
who  liable  for,  §  202. 
not  a  ground  of  defence,  §  210. 
REPORT  of  judicial  proceedings,  is  privileged,  §§  229,  230. 
what  is  a  fair  report,  §  230. 

of  ex  parte  proceedings,  how  far  privileged,  §  231. 
of  proceedings  of  a  court  where  a  contempt,  n,  1154. 
of  commissioner,  not  privileged,  n.  1159. 
of  speech  of  convict,  not  privileged,  §  231. 
of  speech  at  public  meeting,  not  privileged,  §§  234,  236,  n.  1178. 
REPORTER,  privilege  of,  n.  1122,  1154. 
REPUBLICATION,  what  is,  §  112. 

cannot  be  of  oral  language,  §  112. 
REPUTATION,  may  be  injured  by  acts,  n.  2. 
what  it  is,  §  32,  n.  20. 
action  for  injury  to,  n.  10. 
language  affects,  §  82. 

injury  to,  differs  from  injury  to  person  or  property,  §  33. 
not  an  absolute  right,  §  48,  n.  24. 


INDEX.  539 

REPUTATION— continued. 

what  it  is,  n.  20. 
how  the  law  protects  it,  §  57. 
value  of,  n.  44. 

of  plaintiff,  in  aggravation,  §  386. 
in  mitigation,  §  412. 
of  plaintiff  in  issue,  §  406. 
RETRACTION  of  charge  in  mitigation,  §  413. 
RE-TRIAL,  before  what  judge,  §  275.     See  New  Trial. 
RETURNED  CONVICT,  actionable,  §  158. 
RIGHT,  the  opposite  to  is  not  a  wrong  but  a  duty,  §  34. 
defined,  §  35. 
object  of,  §  36. 
and  duty  reciprocal,  §  37. 
pertain  to  persons,  not  to  things,  §  38. 
exercise  of,  is  optional,  §  39. 
how  it  must  be  exercised,  §  40. 
in  some  sense  the  result  of  law,  §  41. 
every  act  is  exercise  of,  &c,  §  42. 
different  under  different  laws,  §  44. 
cannot  catalogue,  §  47. 
wrong  is  an  invasion  of,  §§  46,  48. 
not  proper  to  say  law  prescribes,  §  49. 
impossibility  of  defining,  §  51. 
kinds  of,  n.  24. 
of  action,  not  assignable,  §  299. 

when  it  survives,  §  299. 
ROBBED— ROBBING— meaning  of  these  terms,  §  144  («). 

charge  of  having,  §§  170,  174. 
ROBBERS,  charge  of  being,  not  actionable  by  reason  of  context,  n.  354. 
ROBBERY,  charge  of  attempt  to  commit,  not  actionable,  n.  358,  §  174. 

charge  of,  actionable,  §  170. 
ROGUE,  charge  of  being,  is  actionable,  §§  173,  177,  n.  666. 

Contra,  see  §  174. 
ROMAN  CIVIL  LAW,  administered  in  England,  §  56. 
RULES  relating    tb  remedy  differ  from  rules  determining  when  a  wrong 

done,  §  54. 
RUNAGATE,  meaning  of  the  term,  n.  715. 
RUSSIANS  dread  verbal  insult  more  than  a  blow,  n.  14. 


SATIRIST  differs  from  libeller,  n.  5. 

SAXON  LAWS  in  England,  §.  56. 

SCANDALUM  MAGNATUM,  not  known  in  United  States,  §  138,  n.  148. 


540  INDEX. 

SCHOOLMASTER,  words  concerning,  §§  194,  212. 

SCHOOLTEACHER,  words  of,  §§  182,  190. 

SCOLDING,  indictable,  n.  8. 

SCOUNDREL,  charge  of  being,  not  actionable,  n.  587. 

SCREWED,  meaning  of,  n.  142. 

SECOND  ACTION,  when  barred,  §  185. 

staying  proceedings  in,  n.  1349.   See  Former  Recovery. 
SECRETARY  of  State,  letters  to,  privileged,  §  238. 
of  War,  letters  to,  privileged,  §  237. 
SECURITY  for  costs,  when  required,  §  267. 
SEDUCER,  charge  of  being,  is  actionable,  n.  666. 
SELF-DEFENCE,  language  published  in,  is  privileged,  §  226. 
SEPARATE  ACTIONS  for  same  libel,  n.  1292. 
SERMON,  how  far  privileged,  §  260. 
SERVANT,  when  liable  as  publisher,  §  121,  n.  121. 

employer  liable  for  acts  of,  §  122. 

charge  against,  when  privileged,  n.  1183. 

communication  to  employer,  concerning  when,  privileged,  §  241. 

giving  character  to,  n.  1231,  1258,  §§  245,  246. 

cannot  maintain  action  against  master  for  refusing  to  give  a 
character,  n.  1260. 
SHAVING  PURPOSES,  meaning  of  the  term,  §  144  (aa). 

charge  of  putting  money  in  "Wall  Street  for,  not  ac 
tionable,  §  178. 
SHEEPSTEALER,  charge  of  being,  is  actionable,  §  173. 
SHERIFF,  words  concerning,  §  196. 
SHIP,  words  concerning,  §  201. 
SHIPOWNER,  words  concerning,  §  190. 
SHOEMAKER,  words  concerning,  §  193. 
SHOOTING  out  of  leather  gun,  judicial  notice  of  meaning  of,  n.  140. 

charge  of,  is  actionable,  n.  665. 
SICKNESS,  is  not  special  damage,  §  200. 
SIGNS,  a  means  of  injury,  §  1. 
SLANDERER,  who  is,  §  3. 
SLANDER,  defined,  §  3,  n.  4,  §  8. 

not  indictable,  n.  9. 

remedy  for,  §  8,  n.  10. 

and  libel,  distinction  between,  §  18,  n.  14. 

consists  of  two  acts,  §  70. 

action  for,  not  to  be  encouraged,  n.  160. 

corporation  cannot  be  guilty  of,  §  265.     See  Libel. 
SLANDER  OF  TITLE,  part  of  the  law  of  language  concerning  a  thing,  §  130. 
not  properly  an  action  for  slander,  n.  131. 


INDEX.  541 

SLANDER  OF  TITLE— continued. 

a  metaphorical  expression,  n.  131. 
what  necessary  to  maintain  action  for,  §§  130,  206. 
to  personal  property,  §  206,  p.  245. 
to  a  slave,  n.  1000. 
SLANDEROUS  WORDS,  action  for,  n.  294. 

charge  of  being  publisher  of,  is  actionable,  §  177. 
SMALL  POX,  charge  of  having,  not  actionable,  §  175. 
SMITH,  words  concerning,  §  192. 
SMUGGLING,  charge  of,  is  actionable,  §  177. 
SOLDIER,  actionable  of  a  tradesman,  n.  146. 
SORCERER,  charge  of  being,  not  actionable,  §  174. 
SOUNDS  and  signs,  a  means  of  injury,  §  1,  n.  1. 
SOVEREIGN,  petitions  to  the,  is  privileged,  §  237. 
SOUGHT,  the  term  implies  more  than  intent,  n.  371. 
SOUTH  CAROLINA,  charge  of  stealing  in,  n.  350. 

calling  a  woman  whore  is  actionable  in,  n.  516. 
SPACE,  allegations  of,  are  divisible,  §  145. 

SPECIAL  CHARACTER,  language  concerning  one  in,  §§  179-190. 
SPECIAL  DAMAGE,  nature  of,  §  59,  n.  48,  §§  146, 197. 

in  what  it  consists,  §§  197,  198,  200. 

language  actionable  by  reason  of,  §  197. 

apprehension  of  loss  is  not,  §  200. 

loss  of  services  of  wife,  when  it  is  not,  n.  965. 

occurring  after  a  recovery  in  an  action  for  the  defama 

tion,  §  200. 
illegal  act  of  third  party  is  not,  §  201. 
effect  of  repetition  is  not,  §  202. 
must  be  alleged  in  complaint,  §  345. 
general  issue  is  a  denial  of,  §  403. 
SPEECH,  is  oral  language,  §  1. 

criminal  prosecution  for,  n.  2. 
in  Parliament,  when  privileged,  §  217,  n.  1083. 
of  convict,  on  scaffold,  report  of  not  privileged,  §  231. 
at  public  meeting  not  privileged,  §  234. 
See  Freedom  of  Speech. 
STAR  CHAMBER,  court  of  criminal  equity,  n.  26. 
STATUES  included  in  effigy,  §  1. 
STATUTES,  effect  of  repeal  on  right  of  action,  §  158. 
STAYING  PROCEEDINGS  in  action,  n.  1349. 
STAYMAKER,  words  concerning,  §  190. 
STEAL,  meaning  of  the  term,  §  144  (bo). 
STEALING,  what  amounts  to  charge  of,  n.  137,  143,  182,  254. 
charge  of,  n.  350,  351. 


542  INDEX. 

STEALING— continued. 

goods  of  married  woman,  n.  354. 
STEAMBOAT,  words  concerning,  n.  980. 
STOCKBROKER,  words  of,  §  182. 
STOLE,  meaning  of  the  term,  §  144  (65). 
STRAINED,  meaning  of,  n.  142. 
STRUCK  JURY,  when  it  may  be  ordered,  §  275. 
STRUMPET,  meaning  of,  n.  517,  641. 
SUBORNATION  of  perjury,  charge  of,  n.  477. 
SUFFER,  meaning  of  the  term,  §  144  (cc). 
SUMMONS,  may  be  served  by  publication,  §  267. 
SUPPLEMENTAL  COMPLAINT,  when  allowed,  §  348. 
SURVIVOR  of  right  of  action  for  slander  or  libel,  §  299. 
SUSPICION,  words  denoting,  not  actionable,  §  162. 

not  a  justification,  §  217. 

in  mitigation,  §  411,  n.  2025. 
SWINDLER,  charge  of  being,  not  actionable,  §  174. 

charge  of  being,  actionable  if  in  writing,  §  177,  n.  666. 

what  will  not  justify  a  charge  of  being,  n.  1038. 


TAILOR,  words  concerning,  n.  797. 
TAKEN,  meaning  of  the  term,  §  144  (dd). 
TAKING,  meaning  of  the  term,  n.  258,  259. 
charge  of,  when  actionable,  §  169. 
TAN-MONEY,  judicial  notice  of  meaning  of,  n.  140. 
TENNESSEE,  what  language  is  actionable  in,  §  153. 
THEATRE,  words  concerning  proprietor  of,  §  198. 

right  to  comment  on,  n.  956. 
THIEF,  charge  of  being,  when  actionable,  §  144  (6,  ee),  §  169,  n,  166,  259, 

261,  262.     See  Larceny. 
THIEVING  person,  puppy,  or  rogue,  actionable,  §§  165,  169. 
THIEVISH  KNAVE,  not  actionable,  §  165. 
THIEVISH  PIRATE,  actionable,  §  165. 
THINGS  have  no  rights  and  owe  no  duties,  §  38. 

language  concerning,  §§  130,  203,  204,  205,  206. 
THREATENING  LETTERS,  charge  of  sending,  §  144  (ff),  n.  264. 
THREATS,  action  for,  n.  2. 

TIME,  how  it  affects  the  meaning  of  language,  n.  142. 
allegations  of,  are  divisible,  §  145. 
of  publication,  how  alleged,  §  327. 

how  proved,  n.  1903. 
TINKER,  a  rogue  by  statute,  n.  715. 

TORT  and  crime,  difference  between,  n.  Ill,  §  45.     See  Wrong. 
TORY,  charge  of  being,  is  actionable,  §  177. 


INDEX.  543 

TOWN  CLERK,  words  concerning,  §  196. 
TOWN  MEETING,  proceedings  at,  are  privileged,  §  235. 
TRADE,  language  concerning  one  in  trade  maybe  actionable,   which  not 
actionable  if  concerning  an  individual  as  such,  §§  132,  1J9. 
humility  of,  no  obstacle  to  right  of  action,  n.  715. 
must  be  a  lawful  one,  §  183. 
words  concerning  one  in,  §  188,  n.  760. 
presumption  of  continuance  in,  §  189. 
See  Tradesman. 
TRADESMAN,  words  of,  n.  146.     See  Upholsterer. 

law  is  tender  of  the  reputation  of,  n.  711. 
charge  of  keeping  false  books,  §  188. 
charge  of  being  bankrupt  or  insolvent,  §  191. 
charge  of  fraud  by,  §  192. 
charge  of  ignorance,  §§  193,  194. 
TRAITOR,  actionable,  §  173. 
TRAITOR  KNAVE,  actionable,  §  165. 
TRAITOROUS  KNAVE,  actionable,  §  165. 
TRANSACTION,  what  is  a,  §  36. 
TRANSPORTATION,  what  amounts  to  a  charge  of  crime  punishable  by, 

§  144,  (j;). 
TREASON,  overt  act  necessary  to,  n.  7. 

TRESPASS,  charge  of,  not  actionable,  n.  320.   See  Malicious  Trespass. 
TRIAL,  place  of,  §  268. 

of  issues  in  action  for  slander  or  libel,  §  275. 
when  judge  may  refuse  to  try,  g  275. 
proceedings  on,  §§  276-292. 
right  to  begin  on,  §  276. 

opening  and  summing  up  of  counsel  on,  §  277. 
reading  publication  on,  §  278. 
evidence  on,  §  279. 
abandoning  defence  on,  §  280. 
province  of  court  and  jury  on,  §§  281-289. 
TRUCKMASTER,  meaning  of,  n.  140. 

TRUTH,  is  a  justification  of  slander  or  libel,  §£  73,  211,  n.  58," 59. 
defence  of,  must  be  pleaded,  n.  1031,  §  409. 
pardon  no  answer  to  defence  of,  n.  1031. 
effect  of  establishing  defence  of,  n.  1031. 
justification    on  ground  of,  must  be  as  broad  as  the  charge,  and  o 

the  very  charge,  ?  212. 
justification  on  ground  of,  need  go  no  further  than  the  charge,  §  213. 
should  extend  to  every  part  of  the  defamatory  matter,  which  can 

form  a  substantive  ground  of  action,  n.  1070. 
justification  of  charge  of  perjury,  §  214.     ' 


544  INDEX. 

TRUTH— continued. 

justification   must   be  of  the  meaning  assigned  by  the  innuendo) 
§215. 

belief  in  truth,  no  defence,  §  216. 
requisites  of  plea  of,  §  355. 
in  mitigation,  §  409. 

UNDERSHERIFF,  words  concerning,  §  196. 

UNNATURAL  OFFENCE,  what  amounts  to  a  charge  of,  §  144  (gg),  n.  137. 

charge  of,  when  actionable,  §  153. 

charge  of,  not  actionable,  §§  160,  172. 
UNSKILFULNESS,  charge  of,  when  actionable,  §§  193,  194. 
UPHOLSTERER,  words  of,  n.  146. 

VAGRANT,  charge  of  being,  is  actionable,  §  173. 
VARIANCE,  as  to  words  published  in  a  foreign  tongue,  §  330. 
in  New  York,  when  material,  §  363. 
what  will  amount  to,  §  364. 
instances  of  immaterial  variance,  §  367. 
instances  of  material  variance,  §  369. 
VARLET,  charge  of  being,  not  actionable,  §  174,  n.  763. 
VENEREAL  DISEASE,  charge  of  having,  is  actionable,  §  175. 
VENUE,  in  actions  for  slander  and  libel,  §  268. 
charge  of,  n.  1353. 

cannot  be  objected  to,  after  judgment  by  default,  n.  1368. 
VERDICT,  construction  after,  §  143,  n.  160,  166,  169,  170. 

effect  of,  on  the  costs,  not  to  be  considered,  §  289. 
on  one  of  several  counts,  §  291. 
setting  aside,  for  excessive  damages,  §  293. 
as  against  evidence,  §  295. 
VESTRY  MEETING,  report  of  proceedings  at,  not  privileged,  §  236. 
VILLAIN,  charge  of  being,  held  actionable,  §  173,  contra  §  174. 

actionable,  if  in  writing,  §  177. 
VINDICTIVE  DAMAGES,  when  allowed,  §  290. 
VIRGINIA,  what  language  is  actionable  in,  §  153. 

charge  of  stealing  in,  n.  350. 
VOLUNTARY  ACT,  what  is,  §  76,  n.  63. 
VOTE,  charge  of  fraudulently  destroying,  is  actionable,  §  173. 

WAR.     See  Secretary  of  War. 
WATCHMAKER,  words  concerning,  §  193. 
WEAVER,  words  of,  §§  169,  192. 

WHORE,  what  amounts  to  a  charge  of  being  a,  §  144  (M). 
WHORE  HOUSE,  equivalent  to  bawdy  house,  §  144  (d). 
charge  of  keeping,  is  actionable,  §  173. 


INDEX.  545 

WHOREM ASTER,  charge  of  being,  not  actionable,  §  174. 
WHOREMONGER,  charge  of  being,  is  actionable,  §  173. 
WIDOWER,  words  concerning,  §  198. 
WIFE,  when  letters  to,  not  privileged,  n.  1200. 
WILL,  charge  of  destroying,  not  actionable,  §  160. 

libeller  could  not  make  nor  take  under,  n.  669. 
WITCH,  charge  of  being,  not  actionable,  §  174. 

WITNESS,  cannot  be  asked  how  he  understood  the  language  published,  §  97, 
n.  99,  132,  150,  §§  384,  342. 
no  action  of  slander,  for  words  spoken  as,  §  224. 
opinion  of,  as  to  meaning,  not  allowed,  §  384,  n.  132. 
when  he  may  refuse  to  testify,  §  379,  n.  1911. 
WOMAN,  charge  of  being  a  man,  actionable,  n  949. 

See  Female,  Hermaphrodite. 
WOOLCOMBER,  judicial  notice  of  meaning  of,  n.  140. 
WOOLSTAPLERS,  words  of,  §  185. 
WORDS,  a  cause  of  mischief,  n.  2. 
are  acts,  n.  2. 

the  phrase,  action  for,  n.  14. 
may  be  divided  into  three  classes,  n.  127. 
imputing  crime,  must  be  precise,  n.  1H6. 
mean  written  or  spoken  words,  n.  294. 

See  Language,  Slanderous  Words. 
WRITS,  commencement  of  action  by,  n.  27.      See  Original  Writ. 
WRITING,  is  written  language,  §  1. 

what  it  includes,  §  1,  n.  2. 
WRONG,  is  not  the  opposite  to  a  right,  §  34. 
what  amounts  to,  §  43. 
how  to  determine  what  is,  §  44. 
kinds  of,  §  45. 
description  of,  §  46. 
not  proper  to  say  law  prohibits,  §  49. 
redress  of,  §§  52,  53. 
only  a  wrongful  act  can  amount  to,  §  62. 
what  is  the  essential  element  of,  §  63. 
cannot  be  done  as  agent,  n.  50. 
elements  of,  §§  76-90. 
WRONGFUL  ACT,  what  is,  §  61. 

is  prima  facie  a  wrong,  §  62. 
liability  for,  §§  67,  68,  n.  49,  50. 


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